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ARGUMENT 



HON. JOSIAH G. ABBOTT, 



IN BEHALF OF 



THE PETITIONEES 



BEFORE THE 



JOINT SPECIAL COMMITTEE 

OF THE 

fepsiatur^ of llassacfeusHts, 

ON THE 

PETITION OF C. P. TALBOT AND OTHERS, 

PRAYING FOR THE 

REPEAL OF THE ACT OF 1860 FOR THE REMOVAL OF THE DAM 
ACROSS CONCORD RIVER, AT BILLERICA, 

March 13, 1862. 



I'HONOGKAPHIC REPORT BY MESSRS. YERRINTON' AND BACHKLEK. 



BOSTON: 

WRIGHT & POTTER, PRINTERS, 4 SPRING LANE. 
186 2. 



ARGUMENT 



HON. JOSIAH G. ABBOTT, 

IN BEHALF OF 

THE PETITIONERS 

BEFORE THE 

JOINT SPECIAL COMMITTEE 



fejislature of itassatfettscttj, 

ON THE 

PETITION OF C. P. TALBOT AND OTHERS. 



PRAYING FOR THE 



REPEAL OF THE ACT OF 1860 FOR THE REMOVAL OF THE DAM 
ACROSS CONCORD RIVER, AT BH.LERICA, 

March 13, 1862. 



PHONOGRAPHIC REPOKT BY MESSRS. YERRINTON AM) HACHKI.EIi 



BOSTON: 

WRIGHT & POTTER, PRINTERS, 4 SPRING LANE. 

18 6 2. 






Gill 



f^RGUMENT. 



Mr. Chairman, and Gentlemen of the Committee ;— 

I know you will permit me now to congratulate you, after 
having spent so long a time, and listened so patiently and care- 
fully to the evidence and arguments on the one side and the 
other of this important case, that we have approached so near 
the close and termination of the hearing, which of necessity must 
have so severely tested your patience. And I will endeavor, 
gentlemen, — I say it in all fairness and frankness to you, — I 
will endeavor to take no larger portion of your time, in 
addressing to you the remarks which I am called upon to make 
in closing this case, than is absolutely necessary for the purpose 
of distinctly putting before you the claims, the arguments, and 
the positions of the petitioners, which they desire you carefully 
to examine and consider, believing as the result of such 
examination and consideration, you will be constrained to 
recommend what they ask for, a repeal of the law of 18G0, 
providing for taking down their dam across the Concord River. 

THE GROUNDS OF THE PETITIONERS UNCHANGED. 

And I trust, gentlemen, — and I think I have a right from my 
experience to say it, — I trust the argument may not seem quite 
so tedious and quite so wearisome to you as it does to me. For, 
notwithstanding what my friends have undertaken to charge 
here, from the opening on the part of my brother Griffin to the 
close on the part of my friend who addressed you yesterday, 
[Mr. French,] that we have changed our ground, that we began 
in 1859 with one position, telling one story, and claiming one 
result, that we changed in 18G0, putting ourselves upon other 
grounds, and now, that we have come here, in 1862, still chang- 
ing our ground, and taking a different position, — I have to say 



to you, gentlemen, now, that the great trouble with myself is, 
and some of your Committee who are of our profession will 
appreciate it, — that so it is that notwithstanding these com- 
plaints from the other side, I am again, for the third time, obliged 
to repeat myself. Having on two different times had the 
opportunity and the occasion, in the line of my duty, to address 
other committees and other bodies upon this same subject, I am 
obliged now to go over again, the third time, with a thrice- 
told tale. I am again obliged, sir, to repeat myself. And this 
is really the trouble I am laboring under, not that I am obliged 
to change and resort to new positions — but that I am again and 
again obliged to repeat myself, than which, as some of you 
gentlemen of the Committee know, nothing is more tedious and 
wearisome to a speaker. I beg of you to give to this matter a 
little of your time and attention, considering the charges made 
of change of position, and after you have listened and heard 
what I shall have to say now, that you will look at the argument 
made by me last year, which was printed, and which I have 
never seen from the time it was made till my attention was 
called to it by my friends on the other side ; and I will agree 
to abandon this case, gentlemen, if you do not find that the 
grounds and positions I take here now for my clients are 
substantially the same grounds and the same positions taken 
then. 

I trust too, gentlemen, and I desire to say it now in advance, 
because now, in going over this matter, and in imdertaking to 
sum up the arguments upon one side and the other, I may happen 
to pass over many matters that have been put in evidence, and 
alluded to in the arguments in this case, I trust, gentlemen, that 
you yourselves will not pass over such matters because I do, but 
give them all due weight and consideration. There are many 
and various matters in a case of this kind, vrhere the testimony 
covers four, five, or six hundred pages, and where the considera- 
tions are so varied, which have their effect at the time when 
they are put in, and when they are before the Committee, but 
which we know it is absolutely and utterly impossible, in the 
course of an argument in summing up, even to allude to. I 
only refer to this, gentlemen, to say, that if I do not allude to all 
the details and minutios of the evidence, I trust your Committee 
will not consider that it is because I think that part of the case 



passed over unimportant. I can only call your attention to some 
general considerations, some general matters bearing on the 
subject before you, and leave to you the full and careful exami- 
nation which I have no doubt you will give, of all that has been 
put in, on the one side and on the other, bearing upon the 
subject of your investigation. 

HISTORY OP THE CASE — CLAIM OF THE MEADOW-OWNERS. 

And now, gentlemen, .to come to the case before you. It is 
exceedingly important, — and I think, in this case, after you 
have done what I propose to do, you have really examined 
the whole case, — it is exceedingly important to look at the 
history of these proceedings, to see how they originated, and 
to know what the parties asked for who first obtained the 
passage of the Act, for the repeal of which we are now seeking, 
and to examine the ground upon which they put their case. 

This matter commenced in 1859. You will see, by referring 
to the papers, that in 1859, a petition was presented here, 
signed by the selectmen, in behalf of the citizens of the towns 
of Sudbury, Wayland and Concord, and, I think also of Bedford 
and Carlisle, although we have heard very little here from the 
two last named towns, the petition and claim having been 
mainly prosecuted by the towns of Wayland and Sudbury, with 
perhaps some help from the town of Concord. The prayer 
of that petition was, that a right might be given the petitioners, 
the owners of the meadows on the Concord and Sudbury 
Rivers, to prosecute for the injury they had received at the 
hands of the owners of the dam at Billerica. And now I ask 
your attention, gentlemen, carefully, to the precise ground 
upon which action by the legislature was asked for by those 
petitioners, as you will find it set out in the petition of the 
several towns ; all the other petitions being merely in aid of 
their petition ; the petition on which the legislature of 1859 
appointed a committee to sit during the recess. Now, gentle- 
men, what was the ground of their complaint? Why did they 
ask the interference of the legislature ? How did they then 
put their case ? Why did they then ask the legislature to come 
to their aid, to interfere, and do any thing? — and I shall have 
occasion to allude, directly, to what they did ask the legislature 
to do. Why did they ask the legislature to do something to 



relieve them ? Why, sir, at that time, they asked the legisla- 
ture — and I invoke you to read every word of the main petition 
and those in aid of it — to come to their aid, and do something 
to remedy the evils they vs^ere laboring under, because, they 
said, the legislature in 1793, when they passed the Act incor- 
porating the Middlesex Canal, had authorized that corporation, 
under which we claim here, to do an act which resulted in the 
utter and entire destruction of their property, to the extent 
of one or two millions of dollars. They invoked the. aid of the 
legislature, not, sir, upon any ground taken now. My friends 
claim, here, that I have changed my ground, while in fact the 
only change is made by them, they now putting their claim 
upon the ground that there is a dam upon the Concord River, 
at the Billerica Mills, which prevents improvements in the 
natural condition of their lands ; while, up to this time, they 
founded themselves entirely upon the alleged fact that a dam 
had been raised at Billerica in 1793 and 1828, which raising 
had flooded and destroyed their meadows, till then very valuable. 
So it was, they tell us, that, in 1793, by improvident legislation, 
obtained by means of the lobby and corruption, — a most remarka- 
ble charge, by the way, to be made against our good fathers of 
that day, without a particle of proof to sustain it, — an Act was 
passed creating the Middlesex Canal Corporation, under which 
those acting under it were enabled legally not only to injure, but 
substantially to destroy, their property, to the extent of a million 
of dollars. Farther and worse, they go on to claim, as an addi- 
tional reason for legislative aid now, that the Act of 1793 not 
only authorized the destruction of the meadows, but really 
provided no feasible method of compensation for such destruc- 
tion, so that, in fact, all this property was so ruined without 
a cent being paid for it. And this was the strength of the 
claim for present action : that their property had been injured 
to the extent of one or two millions of dollars, (a most 
monstrous exaggeration, as I shall show, shall demonstrate to 
you hereafter,) by virtue of an Act of the legislature of 1793, 
which had provided no practical remedy for obtaining compen- 
sation for such injury, xind so passionately is this charge 
made, that they even take credit to themselves that they have 
preserved their loyalty, and remained obedient and law-abiding 
citizens, under so crushing a load of injustice and tyranny. 



I beg your attention, gentlemen, most especially to this claim 
of the petition, that property had been destroyed under an Act 
of the legislature, without proper compensation being provided 
for such destruction, as the very groundwork upon which was 
to be based the proposed action, then asked for. 

Why, gentlemen, this is the very soul and spirit of the whole 
petition, the only vitality there is in it; without it, the petition 
would be but the merest dull and lifeless body, — this, and this 
alone, is all that breathes life and soul into the claim. " You," 
they say, " the law making power, the sovereignty of Massa- 
chusetts, have, by the exercise of that power which could not 
be gainsaid or resisted, taken from a portion of your citizens 
their property, and have not provided any compensation for 
such deprivation. You have injured them to the extent of more 
than a million of dollars, and so cunningly devised the act by 
which such injury was worked, that not a cent has ever been 
recovered or received for such wholesale destruction." There- 
fore it is, and therefore only it is, as they urge, that the legis- 
lature are bound in all fairness, and justice, and honor, to come 
in and furnish some kind of aid, some kind of remedy to these 
parties who have been injured by their former action. They 
tell you the Act of 1793, in truth and fact, though not in the 
letter, was in direct violation of the Constitution, which provides 
that private property shall not be taken for public uses without 
due compensation, and therefore you are bound now, however 
late it may be, to right this injustice. And then, if you leave 
the petitions and go to the hearing before the legislative 
committee who sat after the adjournment, and spent some 
twenty or thirty days, more or less, in investigating the ques- 
tions arising under those petitions, you find the whole of the 
testimony was brought to bear upon the claim just referred to. 
If you have examined the large book in which the evidence is 
reported — I know some of you were in the legislature of last 
year, and must have been called on to give it some examina- 
tion — the whole testimony, iipon the one side and the other, 
substantially bears upon these questions : Did the Middlesex 
Canal Corporation in 1798, and again in 1828, raise, under 
their Act of incorporation, the dam at the Billerica Mills, and 
by that raising did they flood out the meadows in question, 
more than three-quarters of which were situate in the towns of 



8 

Sudbury and Wayland, as now claimed by my friends on the 
other side ? Did that corporation, by their act in raising the 
dam in 1798 and keeping it up from that time> and raising it 
again in 1828 and so keeping it up down to this day, tlirow 
back the water upon those meadows which formerly had been 
dry, and the best lands in the bounds of the two towns, and 
upon which the hay-making, they told us, " resembled the vint- 
age in the South of France " ? The claim was, by such raising 
and consequent flowing, these meadows were reduced to a mere 
swamp and bog, and that the water was raised in its " ordinary 
stage two feet at least," more than twenty miles from the dam. 
The claim was not then, as my friends would now have you 
believe, that the troubles upon these meadows, which makes 
them of little value, arose mainly from natural obstructions and 
artificial causes other than the dam, and that they could not be 
obviated excepted by its removal ; but the claim, and the only 
claim, was that the raising of the dam in 1798 and in 1828 had 
injured the meadows to the extent of one or two millions of 
dollars, for which remedy ought now to be provided. The claim 
was that up to 1798 the meadows were most valuable, almost a 
paradise ; that then, and again in 1828, the Canal Corporation 
raised their dam under an Act of the legislature, and flooded 
the water back upon them, not preventing a prospective improve- 
ment, but doing them a then present injury of great magnitude : 
indeed, that by such raising and the consequent flooding, they 
were reduced from the value it was claimed they bore half a cen- 
tury ago of at least one million dollars, to utter worthlessness. 
I don't desire, gentlemen, to weary you by reading or referring 
too much to the voluminous publication of the testimony and 
petitions, but I must call your attention to one of their claims, 
made on page sixteen of this petition, where they set forth, in 
the first paragraph, that " This entire tract, belonging to us, 
fifty-five or six years ago, together, was worth in the market a 
million of dollars, and at the present day would be worth two 
millions of dollars." They had before claimed that it was at the 
present time of little or no value — indeed, utterly worthless. 
And then, as a summing up, they go on to say, on the same 
page, that " this depreciation vjas wholly chargeable to the 3Iid- 
dlesex Canal Corporation.''^ 



But that is only one single instance of what appears in their 
petition, and in that voluminous report of the evidence.. That 
is but a general statement of what was claimed and contended 
for in 1859 ; what was claimed and contended for in 1860, and 
again in 1861, and what w^as claimed and contended for always 
until the facts, the experiments which have been made, demon- 
strate beyond all possibility of doubt, and all peradventure, that 
the claim is utterly without foundation and utterly baseless, in 
reference to the greater part of the land in reference to which 
that claim had been made. 

Well, gentlemen, farther than this, — because, as I said before, 
it is necessary to pursue this subject and exhaust it, and when 
we have fairly examined it in all its bearings, and seen precisely 
on what grounds this legislation of 1860 was asked for, why 
the Act was passed, we have to a very great extent examined 
and mastered all there is in this case, — farther than this, I beg 
you to look at the Report of the legislative committee of 1859, 
appointed to sit during the adjournment. You will find in the 
Report of that committee n'o reference to any action which is 
not based upon the claim of the petition before referred to. 
They find that the raising of the Middlesex dam, under the Act 
of the legislature of 1793, was an efficient cause — otlier causes, 
to be sure, there were — of the injury to this vast quantity of 
land, 8,000 or 10,000 acres, as they put it. They-find, also, 
that, in fact, there had never been any compensation under that 
Act, awarded to, or recovered by, the people whose land had 
been flooded and destroyed ; and, therefore, first, because the 
Middlesex Canal dam and the raising of the dam had flowed 
these meadows, mainly situate in Wayland and Sudbury, and 
secondly, because no compensation had been recovered for such 
flowing, the committee recommend action by the legislature. 
I say, these meadows, mainly situate in Sudbury and Wayland, 
because I take my friend who opened on the other side at his 
word, when he told us, at the same time introducing that tell- 
ing illustration from Hood, of the man who set his own shirt 
tail on fire, that the complaint mainly came from those towns, 
because more than three-quarters of all the injured meadows 
were there situate ; I say again, I am content to take my friend 
at his word, and assume it as an undoubted fact, leaving out, 
however, the illustration, which I must say I cannot entirely 
2 



10 

and fully appreciate, that more than three-quarters of all tlie 
meadows in reference to which your aid lias been invoked are 
situated in those two towns. 

Let me quote the words of that committee : " We recom- 
mend action for two causes ; mainly because injury has been 
done under the Act of the legislature, and because that legisla- 
tion was so improvident that nobody has obtained compensation 
for that injury." That was the Report of the committee of 
1859. That was the why, gentlemen, the legislature of 1860 
were recommended to do any thing in this matter ; because 
those under whom my clients claim, under an Act of the 
legislature of this Commonwealth, had flooded the lands in 
Sudbury and Wayland, and because, under that Act, the land- 
owners had never received any compensation for such .flooding 
and consequent reduction in value of their property, the legis- 
lature are recommended to interpose', and to give to the chil- 
dren, out of the public treasury, some compensation for the 
losses suffered by their fathers. This is recommended as an 
act of justice, and simply justico, and by no means on the 
ground that public policy requires tlie interposition of the State 
to enable the owners to improve the natural condition of their 
lands. You have reduced, say our friends on the other side^ 
drawing on their im.aginations, as is their wont, for their facts, 
our land, which would be, but for your act, an almost earthly 
paradise, whose beauties should be embalmed in song, and so 
go down to remote generations, to an unsightly bog and an 
unhealthy quagmire ; and so say the committee, because this 
has been done without compensation, you must now do tardy 
justice. 

And then, gentlemen, what do you find was the ground taken 
by the committee of 1860 ? This Report of the committee of 
1859 was made to the legislature of 1860, was committed to 
a committee of the legislature of that year, and that com- 
mittee, never having had any meetings where the parties, at least 
where my clients were present, they never having given them 
a chance to appear personally, or by counsel, and defend their 
rights, never having given them, gentlemen, tliat chance which^ 
under our form of government, is given to the humblest indi- 
vidual before his rights are passed upon, which is given to one 
who is guilty of the most atrocious crime—the chance of being 



11 

heard before being condemned ; I say, that committee under- 
took to report this law, of which we now ask a repeal at your 
hands. And why do they report this law? Why, gentlemen, 
they put it upon grounds distinct, clear, and certain, upon 
grounds which the facts now show are entirely untenable ; they 
came to conclusions which the experiments now show con- 
clusively are wrong, and without any foundation in fact — 
conclusions founded on an entire misapprehension of the testi- 
mony, and entirely unsupported by a single fact. 

Look at the Report of the committee, gentlemen. They say 
that the finding of the committee of 1859 was fully sustained 
by the evidence, and that nearly ten thousand acres of the best 
land in the eastern part of the State had been ruined by the 
dam at Billerica. Why did not that committee. Sir, before 
they talked about ten thousand acres, listen to a little evidence, 
and examine the matter a little more carefully ? They find 
" that the dam erected by the Middlesex Canal Corporation is 
an efficient cause of the flowage of nearly ten thousand acres of 
the most valuable land in the eastern section of the State ;" 
that this immense injury to those lands has been actually accom- 
plished by the Canal Corporation, under the charter, without 
the payment of a single cent of damages to the land-owners for 
the injury. Such are the grounds, gentlemen, upon which the 
committee reported this Act of which we ask the repeal. Say 
they, we have ruined — that is, our predecessors, the Middlesex 
Canal Corporation, of whom I speak as my clients, in fact, 
because we claim under them — beginning in 1798 and increas- 
ing in 1828, and so going on down to the present time, have 
by their acts ruined ten thousand acres of the best land in the 
Commonwealth, without paying a cent of compensation for such 
destruction. And such are the reasons for the law they recom- 
mend. A wholesale destruction of private property authorized 
by an Act of the legislature, without the payment of compen- 
sation ; and the charter of the Corporation doing this damage 
having been forfeited, the only course is for the Commonwealth 
now to come in and pay for the necessary consequences of their 
own law. They tell us that this injury has been done by a law, 
in violation of the provisions of the Constitution, which was 
enacted hastily, improvidently, without due consideration, and 
therefore they have " deemed it just, and only just, to the 



12 

meadow-owners, to give them some redress for this improvident 
legislation ;" and further they say, " it is based on the principle 
that the Commonwealth should do justice not only to the peti- 
tioners but to all its citizens. That it owes a debt to the owners 
and ancestors of the present owners of these lands for sixty 
years' depreciation of their annual crops. That it cannot 
restore this to these men, but it can, by the passage of the bill 
reported, render them in the future, some satisfaction for past 
injuries." The proposition, then, is to give these meadow-owners 
redress. For what injury, for what wrong? Why, to give 
them redress for the damages occasioned at our hands, from 
raising the water in Sudbury and Wayland upon their 
meadows, for which they had never received any compensation. 
The whole recommendation is based upon the principle, that in 
this Commonwealth, no one shall have his property taken or 
injured for public uses, under the authority of law, unless at 
the same time full compensation is provided for such taking or 
injury. 

Don't you see, gentlemen, that beyond all poradventure, that 
such was the only reason given by the Committee for their recom- 
mendation ? Why, it is so patent, it is so written upon the 
whole of the five or six hundred pages of that report, and of all 
tlie other reports that have been made, that " he who runs may 
. read," — it is from the beginning the burden of the complaint, 
and it has so continued down to the present time. So it is we 
are told, that the legislature of the Commonwealth have 
authorized the creation of a corporation who have raised and 
kept up the dam at Billerica, and in that way have raised 
and kept up the water, as the most moderate witnesses tes- 
tified, two feet at the meadows in Sudbury and Wayland, so 
reducing that most valuable and beautiful land to a bog and 
quagmire of no manner of worth to any one. And this, we are 
told, has been done without compensation. Therefore we are 
told, and therefore the committee in 1860 say, " We give you 
compensation from the treasury of the Commonwealth ;" on 
the ground, gentlemen, upon no other ground, that the Com- 
monwealth has done the whole injury, for which no compensa- 
tion has been paid. Now, gentlemen, have you any doubt as 
to what constituted the sole and only reason for the passage of 
the law of 1860 ? 



13 

I invoke you, gentlemen, if you have patience, and can spare 
the time for doing it, to begin at the beginning of the first 
long report of evidence, and of all the reports, and wade 
through, most carefully, the whole of the six or seven hundred 
pages, — and, I say again, if you do not find that all the action 
that is asked for is based upon the proposition I have referred 
to, I should be almost willing to abandon the case. All the 
petitioners ask for the interference by the legislature, because 
by law the Middlesex Canal were authorized to raise their dam 
in 1798 and 1828, and by so doing have Cowed back the waters 
of the river, in Sudbury and Wayland, at least two feet, without 
paying any damages therefor. One of the witnesses, indeed, 
who is nearly as tall as I am, goes so far as to say tliat where, 
in Sudbury, sixty years ago, he could drive a four-horse team 
without miring an inch, the water is now so raised by the 
Middlesex dam that it stands, in its ordinary summer stage, 
above his head ! And he only shows, gentlemen, how the 
imagination, looking back through the long vista of years, can 
enlarge and magnify all the occurrences of the past. 

ANSWER TO THE CLAIM. 

Such was the whole claim, from beginning to end, and I ask 
you if I have not stated it fairly ? And now, gentlemen, what 
was our answer to this claim ? Why, according to tlie present 
aspect of this case, and the way it has been argued by my two 
friends who have preceded mo on the other side, we have, 
up to this time, been acting upon a great and magnificent 
mistake. Tlie committees of the legislature, and the counsel 
upon one side and the other, up to this period, have been 
spending all this time and money upon the supposition that the 
sole inquiry was whether this dam at Billerica Mills, now owned 
by my clients, had flowed back the waters of the Sudbury 
River, in Sudbury and Wayland, some two feet — the most 
subdued estimate, as you will find, heretofore given by the 
witnesses from Sudbury and Wayland. And that has always 
heretofore been the subject of our inquiry. Our claim, gentle- 
men, was this : we told these men from the beginning — I invoke 
you again to read, if you have patience, every word that I have 
said upon this subject, from the beginning to the end, whenever 
I have appeared before any committee, or any body, and see if 



14 

I have changed, or do now change, by a hair's breadth, the 
ground I take here for my clients : — we claimed in 1859, 
we claimed in 1860, we claimed in 1861, and we now claim 
before you, gentlemen, in 1862, this : that our dam at Billerica 
had not been raised, was not raised in 1798, nor in 1828 ; and 
further, and more especially, — and this, sir, was the great 
question which we always made, and of the truth of which we 
always tried to convince the legislature, successfully so last 
year, I think, and which is now demonstrated to be true by the 
experiments of the Commissioners of 1862, — we claimed that 
the dam at Billerica Mills — raised in 1798, or raised in 1828, 
if you please, I don't care if it was built anew in 1798 or 1828 — 
that the dam did no substantial harm, did no substantial 
injury, gentlemen, to the meadows above it. We claimed that, 
as far as Sudbury and Wayland were concerned, as far as those 
towns and those persons from whom came this complaint of a 
half-a-century's standing, that there never had been, gentlemen, 
the smallest fraction of an inch of water raised by that dam 
upon their meadows. 

That was our claim ; and to prove that claim our evidence 
was introduced. Why, it was understood, gentlemen, it was 
perfectly well known, that unless the legislature could'be con- 
vinced that through their agency in 1793 the property of the 
inhabitants of the towns of Sudbury and Wayland had been 
injured and destroyed as they claimed, and that without 
compensation, — unless that proposition could be proved, no body 
of men who were ever entrusted with the responsibilities and 
duties of legislation in this Commonwealth would ever think of 
interfering with the property of a private citizen, or the property 
and prosperity of any town, more especially when such interfer- 
ence was to be at the cost of the public treasury, and not of 
those to be benefited by such action. 

Such then, gentlemen, was the inquiry on the one side and 
the other. I beg of you to examine most carefully and determine 
if lam not right in saying that the whole, long, tedious inquiry 
and hearing upon the subject of the Act of 1860 was sub- 
stantially to settle the question whether the dam at Billerica 
was raised in 1798, and again in 1828, and whether as the 
necessary result of such raising the meadows in Wayland and 
Sudbury were so flooded as to be entirely ruined ; reduced 



15 

from being some of the most valuable lands in the State to a 
condition of utter worthlessness. Such was the allegation upon 
one side, and tliat allegation was denied upon the other. And 
it was upon finding that proposition one way, and because, 
gentlemen, the committee of the legislature of 1860 made an 
entire mistake in their finding, a mistake perhaps to be expected, 
they never having given the parties interested a chance to be 
heard, and' really having had no time to carefully examine the 
matter, — it was from this mistaken finding, as they say in their 
report, because the dam had almost destroyed ten thousand 
acres of most valuable lands without any compensation, tliat 
they recommend the Act of 1860. It was for the same reason, 
it is fair to presume, that the legislature passed that Act and 
imposed the burden upon the public treasury of affording a 
remedy for the evils occasioned by the Act of 1793. 

CLAIMS AND COMPLAINTS GROUNDLESS. 

Now, gentlemen, is it not true that when you have gone so 
far in this inquiry, you have really accomplished the most that 
you are called upon to do ? For now, so it is, after the experi- 
ments of the commissioners and their report, it is demonstrated 
to be true beyond all question and doubt, as certain as a 
mathematical truth, and you are so to consider it, as you 
have decided, that none of the meadows above the dam are 
substantially injured by its flowage, and that it does not, as 
it is now maintained at its highest point, set back any water 
upon the meadows in Sudbury and Wayland. Now you have it 
as a proved fact that all this complaint of ruin in those two 
towns from the Billerica dam, whether it was raised in 1798 and 
again in 1828 or not, is entirely groundless, and never had any 
foundation except in the imaginations of those complaining, 
that water instead of being raised two feet in those towns by 
the dam, was not affected by it a single inch. 

Why, gentlemen, you now have it demonstrated that these 
claims and allegations, upon a belief in which the legislature 
passed the Act of 1860, are entirely without foundation in fact, 
groundless beyond all peradventure. The Act then was passed 
because of the mistake, a mistake of great magnitude no doubt, 
and involving large interests, but still a mistake, and one which 
has already entailed upon the Commonwealth an expense of 



16 

some twenty thousand dollars, and which, if persisted in, will 
entail iii)on them an expenditure the limit of which it is im- 
possible now to foresee and calculate. Because, gentlemen, if 
this course is persisted in and the Act retained, after the report 
of the commissioners, as I shall have occasion to say to you 
hereafter, it is but the beginning of the end, it is but the initia- 
tion of a policy which will be invoked every year and by all parts 
of the State. Sudbury River and Concord River are not the 
only rivers in the State of Massachusetts. If you begin here to 
improve and pay for improvements out of the treasury of tlie 
Commonwealth, others will come in for their share of expendi- 
ture, and that, too, with equal right and equal justice. Why, 
gentlemen, it turns out now,—and I only call your attention to 
it in this connection to show the series of mistakes, not to say 
blunders, on which this Act was passed, — with all these magni- 
ficent claims made, that ten or twelve thousand acres of the 
most valuable land in the eastern part of Massachusetts, worth 
one or two millions of dollars, had been utterly ruined, — it turns 
out now, gentlemen, by actual measurement, that this magnifi- 
cent claim has been reduced two-thirds, that instead of ten or 
twelve thousand acres there are but about four thousand acres 
of meadows all told, including all those in Billerica about which 
no complaint is made. And that this measurement is most 
liberal you will see by a moment's glance at the large map of 
their lands, where you will find by the elevations of their sur- 
face, marked in small figures, large tracts are included more 
than a mile from the river, and from two and a half to five feet 
above the top of our dam, and other large tracts still higher, 
where it was not considered necessary to mark their elevation. 
And further, from actual experiment it is now demonstrated, 
that instead of the dam flooding back the water in Sudbury 
and Wayland at least two feet, as was claimed by the most 
moderate and least inflamed testimony, at the highest point 
it ever reached, it never set an inch of water upon the 
meadows in those towns, and that it will only raise the water 
a half a mile above it, a fraction short of eight inches. That is, 
gentlemen, if you take the dam entirely away, not cut it down 
two or three feet, and let the water run, as nature made it to 
flow, without let or hindrance from any artificial obstruction, 
you can only lower the water, half a mile above, not two 



17 

feet, but less than eight inches. Still the good people of Way- 
land and Sudbury claimed — believed, I suppose, — that the dam 
raised the water at least two feet five-and-twenty miles above. 
Now I pray you, gentlemen, look at the result, the proved 
demonstrated result, and compare it with the claim. 

The claim was this, that three-quarters of this ten thousand 
acres of land was situate in the towns of Sudbury and Wayland, 
the most valuable land in all that section of the State, and that 
the water had been raised five-and-twenty miles above the dam 
to the depth of two feet, at its ordinary summer stage. Eight 
inches was considered hardly of consequence, but the claim was 
two good feet, at the most moderate calculation. It turns out, 
gentlemen, not only that this two feet never had any existence 
except in imagination, but tliat the dam, take it all away, 
VT'ould not affect the water half a mile above it quite eight 
inches, according to the report of the Commissioners ; and that 
all the eight inches disappear substantially before you get up 
into that region, sir, from which comes the largest, and longest, 
and loudest cry, — because, as my friend upon the other side 
says, there the dam did its greatest and wickedest work ; a work 
so hurtful, so destructive, that the sufferers were constrained 
to cry out and complain till they made themselves heard, and 
obtained redress for their sore distress. 

PERSISTENCY OP THE COMPLAINTS. 

Tlje complaints of the people of Sudbury and Wayland have 
been long, loud, constant, and persistent in reference to their 
meadows. They began in 1636, were continued in 164-1 and 
1672, and down to 1711, during all which time they were as 
loud in arraigning nature for her unkindness, as they were 
afterwards in inveighing against the injustice of the mill-owners. 
Soon after 1711 they began to persecute Christopher Osgood, 
who built the first dam under the Billerica grant, and continued 
the persecution until they obtained, it would seem, an adjudica- 
tion that the dam was a nuisance, although it is now certain 
it could not have injured their lands a particle. We find them 
again in 1742 and 1789 complaining most bitterly of nature ; 
and then changing, after 1798, and charging the same troubles 
upon the raising of the dam by the Middlesex Canal. Then came 
a succession of trials with the Canal Corporation, when they 
3 



18 

complain again not only of the dam, but also of the ignorance 
and injustice of the juries of their neighbors, who were too wise 
to be misled by them, and rendered verdicts against the land own- 
ers, and in favor of the Canal Corporation. Then again, in 1816, 
we find them complaining of nature for the fifth or sixth time, 
and asking for legislative aid to enable them to combine and 
remedy the evils of their natural position. After 1828, when 
a new dam was built at Billerica, the charges against the mill- 
owners are renewed, and kept up, down to this time. And 
you find my friend, who opened on the other side, telling 
you the legislature must now redress the wrongs and injustice 
sufifered by these patient land owners, during the last two cen- 
turies ; forgetting, in his zeal and ardor, that he was charging 
nature herself as well as the mill-owners with the doing of these 
wrongs, — for during more than a quarter part of that time 
there was no obstruction to the flow of the water in the Concord 
placed there by the hand of man. My friend was misled by 
his ardor and imagination, or he would hardly have called upon 
you to redress such wrongs. But after all I am wrong and he 
is right, on a more careful examination of the whole of his 
claim. Give it that examination, and you will see, however it 
may be disguised, you are now in fact, in truth, asked to furnish 
aid from the public treasury to remedy the natural defects of 
these lands, for now it is established that our dam does them 
no manner of injury. This is really the claim, and what it 
must result in, however much it may be attempted to distract 
your attention from the true issue. 

THE REAL CLAIM. 

I know my friend, who opened on the other side, tried to 
disguise this as much as possible, and lead you off in other 
directions, so as to cover up, as much as he was able to do, the 
only true ground upon which his case could be put. But how- 
ever able and artful my friend may be, he cannot turn you 
away from the true reason, the real grounds of his claim, not 
although he should give us double the number of fragments 
from his fourth of July orations, or Lyceum lectures, not 
although he should amaze us by an increase of queer and 
incongruous illustrations, and rhetorical ornamentations. I do 
not mean to detract one whit from the credit due to my friend, 



19 

however, for I thought he did what man could do to conceal 
his real purpose, and evinced more than his usual fertility of 
resource in confusing a subject. Indeed, as I sat listening to 
him and heard him pass from Hood and his story of the burnt 
shirt, to Cotton Mather and his short way with unbelievers — from 
Sir Harry Vane, governing by the law of God, to Napoleon, 
acknowledging no rule but his own will — from Julius Caesar to 
the Pope of Rome — the Pontine Marshes to the Yalley of the 
Nile — from De Quincey to Dr. Fairweather and Elsie Yenner, 
I felt very much as one does in a dream, where there will be a 
constant succession of the queerest and most disconnected and 
unlike persons and events trooping through the mind. 

But attempt to disguise it as he may, he really asks you now 
to come to the aid of the land-owners, and take our property 
for the reason just given, paying for it out of the public purse, 
not because they have been injured by us under any Act of the 
legislature for which compensation has not been paid, but to 
enable them to improve upon and remedy the natural infe- 
licities and disadvantages of their position. Have we set back 
an inch of water on these lands in Wayland and Sudbury, 
where the complaint mainly comes from ? By no means ; that 
is all settled for us by the uncontroverted evidence deduced 
from the experiments. This then is the real statement of the 
claim : you must deprive the Talbots of their property, and the 
town of Billerica of their chief source of prosperity and 
prospective increase, of their right to avail themselves of the 
natural advantages of the falls on the river within their bounds, 
usually a more valuable property and greater source of pros- 
perity than the meadows on the banks, to enable these gentle- 
men owning lands in Wayland and Sudbury to improve upon 
the natural condition of their property, to enable them, as my 
friend says, to remedy and redress the wrongs inflicted on them 
by nature. 

I don't believe, gentlemen, you are called upon to do any 
thing more than undertake to do justice for and rectify the 
wrongs which your predecessors have done. 

HOW THE ACT OF 1860 WAS PASSED. 

Now, gentlemen, I want your attention for a moment to the 
way in which this Act was passed ; because I am aware — I hope 



20 

I give as much weight to it as ray friends upon the other side 
can — I am aware of the weight that should be given to this 
proposition, that an Act of tlie legislature is not to be repealed 
lightly, before it is tried, and found to be wrong by experience. 
I agree, sir, that there are many cases where I would not vote 
for the passage of a law, and still would not, after it had been 
enacted, vote for its repeal until it had been tried. I know, 
and am ready to admit, that there is great force and weight in 
the argument, that after a law has been enacted, has been put 
on the statute book, different considerations undoubtedly prevail, 
in reference to the repeal of it, than ought to prevail in refer- 
ence to its passage. And I am prepared to meet that argument, 
and therefore desire your attention to the history of the way 
in which this law was passed. 

Why, sir, it is true that this Act was unexpected to, and 
unasked for by, every-body. It was never asked for by the peti- 
tioners upon whose petition the original committee of 1859 
was raised. My friend has told you that some misstatements 
were made in a publication put forth through the Common- 
wealth by my clients. But he is mistaken. That publication 
was substantially correct. I beg again you will examine the 
petition of the four or five towns, upon which the original 
committee of 1859 was raised, and all the other petitions in 
aid of it, and you will find, with the single exception of that 
of Henry Vose and others in aid, there is not a lisp in them, 
from beginning to end, in reference to the Commonwealth 
assuming the power to cut down the dam at Billerica Mills. 
On the contrary, — I wish your attention to the fact, — that all 
they ask — and they say so most emphatically — is that the 
Commonwealth may simply restore to them the right to seek 
in a court of justice a remedy for the wrongs they have suffered 
at our hands, by means of this dam. They ask for nothing 
else substantially. The burden of their song and complaint is 
this : — " You have limited us to one year to prosecute for our 
damages, and so it is that so short a time was really depriving 
us of all remedy — really amounting to a denial of justice." 
All they say in their petition is, " Just repeal that limitation 
Act, and give us the natural right of pursuing a remedy for 
wrongs ; restore to us the right to sue the owners of this dam 
for the injury we have suffered at their hands." Well, gentle- 



21 

men, I should be entirely content that the owners of all the 
meadow-lands in Sudbury and Wayland might sue us for any 
damage we have done, which is substantially all they ask for, 
because, it turns out now, from the experiments, the results 
of which we have before us, that we never set back upon their 
lands an inch of water. They ask for rather a barren right, I 
apprehend it would turn out, — the power to pursue a remedy 
for a wrong which was never suffered. That is all they ask for, 
except the repeal of the Act creating the Canal Corporation, 
which has been accomplished. They do not ask for a cutting 
down of the dam. 

Again, gentlemen, the Committee who reported upon this 
matter in 1859, if you will examine their report most carefully, 
do not recommend to the legislature, except in the very last 
resort, — they recommend first various other different things, — 
they do not recommend this cutting down the dam, except as 
a last resort. More, gentlemen, the secretary of that commit- 
tee, who spent thirty days, more or less, in a patient hearing 
and investigation of the whole matter, Mr. Wrightington, of 
Fall River, a most intelligent, able and careful man, was a 
member of the House in 1860, when the report of that year 
was made, and this law was passed ; and he not only voted 
against it, but spoke against it, and did all he could to prevent 
its passage. Nay, more, gentlemen, last year he was a member 
of the House, and he again was in favor of suspending the 
operation of that Act, saying that he did not believe in its 
wisdom or justice. 

ORDINARY OBJECTIONS TO REPEAL NOT APPLICABLE TO THIS ACT. 

I now wish' to show you, gentlemen, the reason why the ordi- 
nary objections to the repeal of a law do not apply in this case. 
The Act of 1860 was reported at an evening session, on the 
29th of March — Friday, I think ; it was printed and distributed 
the next day, and did not get into the hands of the members 
to any extent until Monday. On the same 29th day of March, 
gentlemen, and not before, the report of the committee of 
1859, containing some 500 pages of evidence, the only evidence 
upon which the legislature were to pass the Act of 1860, was 
printed and distributed among the members of the House and 
Senate, and unless they did what nobody had a right to call 



22 

upon them to do, I don't believe there were ten of them, 
outside of the committee, who read, even hastily, the evidence, 
before they were finally called upon to vote upon a law which 
depended upon it. Indeed, gentlemen, under the pressure of 
the few last days of the session, no one could read even 
a portion of this evidence, and attend to his other duties. 
How could any fair examination and consideration of the 
question be had, — the report of the evidence printed on the 
29th of March, the Act printed on the 30th for the use of 
the members, and the legislature adjourning on the 4th of April ? 
Don't you know, all of you, gentlemen, that the Act must have 
been passed upon by the legislature without any member 
having had the opportunity for that examination which should 
have been given to so important and so novel an Act ? 

More than that, gentlemen. So it was — why, I don't know — 
my clients never had an opportunity to be heard before the 
committee, either personally or by counsel. We know that 
two of the chief originators and supporters of this measure, the 
two main pillars of this whole edifice, who have been engaged 
upon it from beginning to the end, — most respectable men, 
undoubtedly, — who have their prejudices in reference to it — 
with whom the belief in the wrongs done by the Billerica dam 
has become chronic, and beyond the power of being shaken, and 
whom you could not convince that they were mistaken, in my 
judgment, gentlemen, if an angel came down from heaven to 
testify to them of their mistake, — we know two of those men 
were members of the legislature of that year ; I rather think 
they had some business to attend to both before and with the 
committee and other members of the legislature in reference to 
this subject. This may help in explaining wliy so extraordinary 
an Act was passed with so little opportunity for examination 
and consideration. I refer to the members for that year from 
Concord and from Wayland. I know this certainly, whether 
others were heard or not, so it was, gentlemen, that these peti- 
tioners now here, remonstrants then, could not get the chance 
to be heard before that committee, who were to pass and did pass 
upon their rights. I know I besought an old friend of mine, a 
member of that committee, for a chance to be heard only, and I 
thought I had assurances that my request should be granted. I 
asked it as a right, as a favor, on every ground, as counsel for the 



23 

most respectable town of Billerica, whose interests were at stake ; 
I asked it for my clients, and on stronger grounds still, for my 
friends, gentlemen, for in this case, I am happy to say, I appear 
here not for clients merely, but for close and dear friends of 
many years standing, — to have the chance to appear before that 
committee before the rights of those I represented were finally 
passed on. I urged upon this member of the committee, who 
I supposed could appreciate the argument, that no one should 
be condemned without a hearing. " Wliy, Sir," said I, " you 
would not undertake to punish, to even act upon the rights of 
the worst criminal that ever lived, without giving him a chance 
to be heard in his own defence before he was condemned." But 
so it was, gentlemen, that we could not be vouchsafed a hear- 
ing. I suppose they thought there was no time for it ; if a 
hearing was had, it would have been impossible to have forced 
through the bill. I agree with them in the latter opinion. If 
we had been granted a hearing, a chance to urge our claims, 
my belief is, the report would never have been made, or if 
made, its recommendation would never have been adopted. 

The committee say they read the proof-sheets of this report 
as it was coming out, and the moment it came out they reported 
the bill to the legislature, coming to a conclusion in their haste 
upon the facts and evidence entirely unwarranted, a conclusion 
now proved by the experiments to be all wrong, and utterly 
without foundation.' The mistake, the blunder was made be- 
cause they were in haste, and would not hear both the parties 
to be affected by their action. And more than all this, gentle- 
men, I have the right to say here, because it was said by one of 
the committee, a member of the Senate from Suffolk County, 
who denounced the bill as being utterly unjustifiable and un- 
called for, and one which he, as a member of the committee, 
knew nothing of — that all the members were never notified of 
any meeting of the committee when it was agreed upon. That 
member of the committee from Suffolk County is now a mem- 
ber of the Governor's Council. 

So hurriedly and under such circumstances this most impor- 
tant bill, most novel in character, was passed, gentlemen. 
Have we not a right to complain of hasty legislation ? They 
talk about hasty and improvident legislation in 1793. Haven't 
we a right to complain of hasty and improvident legislation 



u 

in 1860 ? " Hasty and improvident," gentlemen ? So hasty 
and improvident that the rights of a most respectable town, 
and the rights of my clients — involving their right to the en- 
joyment of all the property, really, they have accumulated — 
were passed upon, were taken from them, without the possible 
chance of saying a word in their own behalf. I take it, gentle- 
men, there are two sides to this question of " hasty and improvi- 
dent legislation." What said the legislature of 1861 ? Why, 
gentlemen, after a hearing of some twenty days, more or less, 
before that committee — the chairman of which, on the part of 
the House, now fills the Speaker's chair — they came to the con- 
clusion unanimously that the law of 1860 was hastily and im- 
providently passed, and ought not to have been enacted at that 
point of time without further and more careful inquiries into 
the reasons urged in its favor. They came to the conclusion, 
farther, gentlemen, really that the only question before the 
legislature of last year — a decision upon which would estab- 
lish the right or the wrong of that act — was this : Does the 
dam at Billerica flood the meadows in Sudbury and Way- 
land, and in Concord ? Does it drown them out, destroy them, 
render them worthless ? Does it set back and keep upon them 
the water two feet higher than formerly at the ordinary summer 
stage of the river ? Therefore they said, " The Act of 1860 shall 
not go into operation until these questions have been answered, 
and the matter made certain and beyond doubt by actual ex- 
periments, until it has been made certain beyond all question 
whether the water, which it is claimed has been set back upon 
these meadows some two feet at the lowest computation, has 
been set back upon them at all." Such was the opinion of the 
legislature of last winter. Why, they have really said that 
this Act of 1860 was hasty, ill-considered, improvident, and not 
fit and proper to have been passed. They by their action have 
opened the door through which you are to pass, and through 
which we now ask you to pass. There is nothing, then, gentle- 
men, nothing — when you come to examine the facts and cir- 
cumstances surrounding the passage of the Act of 1860 — in the 
claim that you are asked here, without cause, to repeal a law 
which has been passed with deliberation and with care. The 
trouble is that the enactment of this Act lacks the important 



25 

elements of due consideration and deliberation, of proper exami- 
nation of the grounds and evidence upon which it was asked for. 

EXAGGERATION OP THE QUANTITY OF LAND INJURED, 

There is one other matter, gentlemen, to which I want your 
attention here, as we pass along. It is to the monstrous exag- 
geration of all the facts and claims upon which the land-owners 
put their case, only showing how far prejudice, how far interest, 
how far schooling one's self to look upon one side of a question 
alone, to the exclusion of the other, will lead away honest and 
ordinarily fair-minded men. The monstrous exaggeration upon 
this subject, both as to the quantity and quality of the lands 
which they claim have been injured, and the extent of the injury, 
is now settled, proved beyond any further controversy. 

They claim, gentlemen, tliat we have injured, substantially 
destroyed, their meadows in Sudbury and Wayland, — and they 
say the limits of those towns embrace more than three-quarters 
of all tlie lands affected, — that we have turned a most beautiful 
and smiling mead, the main source of wealth to the inhabitants 
of those towns, into a barren wilderness and an unwholesome 
bog, — that we have raised the water two feet, and flooded out 
thousands of acres ; and it turns out by actual proof, we have 
not in any way affected the lands in those towns, or put upon 
them an inch of water, and that whatever changes may have 
taken place, they cannot be ascribed to us with the slightest 
shadow of truth. 

But, gentlemen, as I said just now, the whole matter, the 
whole claim, is a monstrous exaggeration. The claim made 
here, on the start, assumed huge and magnificent proportions, 
and was ever after exaggerated and magnified, until even my 
friend here who closed yesterday, seems to have convinced him- 
self that it is one of the greatest subjects that ever came before 
any legislature. And you see liow the legislature were misled, 
througliout, by the reports in 1859 and 1860, which I have 
quoted. The petition claims there were ten or twelve thousand 
acres of land ruined; the committee of 1859 report, "from 
eight to ten thousand acres ;" and that of 1860, " about ten 
thousand acres of the best land ruined." How ruined, I desire 
to know ? They say, — petitions, reports and all, — not by natu- 
ral causes, not by other artificial obstructions we have had no 

4 



26 

control over, but ruined by our action, ruined because we had 
built and raised the dam at Billerica under an Act of the 
legislature. 

Now, as to the number of acres, gentlemen, how large is it? 
My attention was called to it first by a member of the legisla- 
ture of last year, and, I am happy to say, of this year also, who 
had some knowledge of the matter, who was born upon the 
banks of the Concord River, and had often — as I have done — 
fished vip and down the banks of these rivers day after day ; he 
came to me and told me there was nothing like ten thousand 
acres, reckoning every thing — not half of it. And then, gen- 
tlemen, for the first time, — I agree that I had been misled by the 
bold and confident assertion of respectable men, on the other 
side, — I was led to examine carefully the evidence on that sub- 
ject. I am ashamed of it — I had taken it for granted, all of us 
had, that what they claimed so boldly and confidently was true 
substantially ; but when for the first time I was led to examine, 
gentlemen, I found, from their own sworn testimony, from their 
own largest estimated statements, that they could not get, all 
told, in the towns that had claimed damages — not, sir, of 
meadows alone, but of meadows and lands they claimed had 
been affected by the flowage — quite five thousand acres. And 
then I said, and I say it now, and am willing to be held to it now, 
though not to open my lips for my clients is about the last thing 
I would agree to in this case, " If you will go and measure the 
number of acres in those meadows, I will abandon this case if 
you find over five and thirty hundred acres that any competent 
engineer will say are affected by the flowing of our dam." And 
with the same proviso, gentlemen, I will say, now, if you find 
over a thousand acres so affected, I will abandon the case. 
Why, gentlemen, there are found to be about four thousand 
acres, all told, taking Sudbury, Wayland, Lincoln, Concord, 
Bedford, Carlisle, and Billerica, embracing every thing. And 
to see what they have to put in to make even about four thou- 
sand acres, as the Commissioners report, I ask your most careful 
attention to that great map, gentlemen, that has been paraded 
here, where all facts that are supposed to tell for the land-owners 
are on a large scale, and all telling for us are either left out or 
put down so minutely as not to attract attention. I understand 
that the green lines upon it represent the meadow lands, making 



27 

up " the about four thousand acres ; " you will find that the 
meadows there represented extend more than a mile and a half 
from the river, and that the great proportion of the surface of 
.those meadows is two, three, and four, and even five feet above 
the top of our dam, and large quantities of them so high above 
it that they don't dare to put down the elevation of surface 
above the dam which is claimed to destroy them. I want your 
attention to this fact carefully ; — it is easy to say generally " about 
four thousand acres^'^ but examine the map and the elevations 
marked, and those so high it won't do to mark them, and the 
conclusion will force itself upon you, that of meadows that 
could be within the limits of any flowage from the river, in its 
ordinary stage, there are not only not about four thousand acres ^ 
but in all human probability, not over two thousand acres. 

And again, gentlemen, my friend here — I must invoke him 
again, for occasionally he makes an admission which is useful — 
has said the main trouble, more than three-quarters of all the 
trouble, is in the towns of Wayland and Sudbury, because there 
is situate more than three-quarters of the injured meadows. I 
take him precisely at his word — I thank him for the admission 
of the three-quarters. There were three thousand acres, then, 
of the about four thousand acres of meadows in the towns of 
Sudbury and Wayland. But the Commissioners say, and you 
will find it and believe it — and nobody can doubt it at this day 
of our Lord, — that our dam does not injure the lands in those 
towns in the slightest appreciable degree. Then there are three 
thousand of the about four thousand gone at once, and there 
are but a tnousand left, to distribute between the five towns of 
Lincoln, Concord, Billerica, Carlisle, and Bedford. Cannot I 
stand, think ye, by my declaration of last year, that I will 
abandon this case if any competent engineer will find more than 
five and thirty hundred acres of land affected by the flowage of 
our dam ? Why, these Commissioners say, themselves, in effect, 
that there is less than a thousand acres ; and you will find, in 
some places in the neighborhood of the dam, that they have 
included in their estimate within the green lines, land they 
themselves say is some three or four feet above the top of our 
dam, and some of it still higher that they do not give us the 
elevation of. 



28 



BILLERICA AND BEDFORD NOT INJURED. 

Well, gentlemen, so far as the town of Billerica is concerned, 
and the several hundred acres in that town and Bedford, 
which her citizens own, I beg of you to have no anxiety on 
her and their account to devise a remedy for any injustice they 
have suffered from our dam. Because, so it happens, — and 
this is a peculiar case, — that with this river, immediately above 
the dam, running for some four or five miles through the town 
of Billerica, with meadows on eacli side of it, and where the 
water is highest flowed back by the dam, the land-owners do 
not know they have been flowed or injured, and do not desire 
you to interfere in their behalf; on the contrary, they most 
earnestly deprecate all action on your part. Some fourteen or 
fifteen witnesses from that town, and some from Carlisle, testi- 
fied that there had been no raising of water on their lands, within 
the memory of man, by our dam. And in addition to that 
testimony, they come here this year and ask you, every man of 
them owning meadows in Billerica, and some of the owners of 
meadows in the town of Bedford, not to interfere on their 
account, for they are suffering no trouble. Their neighbors five- 
and-twenty miles above the dam may be suffering from it, but 
these men, owning lands for the five miles next above it, suffer 
no manner of evil — at any rate, if they have suffered, they 
never have known it. 

Then, I say again, gentlemen, you have but a thousand acres 
for Lincoln and Concord and Bedford and Carlisle and Bille- 
rica ; Carlisle is on one side of the river, Bedford on the other 
Billerica on both sides. Deduct Billerica from the thousand 
acres, and I desire to know how^much you will have left affected 
by the flowage of our dam. Four thousand acres of the best 
land in the Commonwealth affected by the flowing of our dam, 
when, pull the whole dam away to the foundation, and you 
cannot affect the water half a mile above it quite eight inches ! 
And tliey come here, deliberately, and tell you, and have told 
other legislatures, and got them to act upon it hastily, impro- 
vidently, wrongfully, that ten thousand acres of land has been 
flooded, by raising the water two feet, five-and-twenty miles 
above that dam ! 



29 



VALUE OF THE LAND GREATLY EXAGGERATED. 

The value of the land, gentlemen, I want to call your atten- 
tion to for a moment. Why, read this original petition. And 
perhaps, gentlemen, that will be quite enough. There is some- 
thing amusing about this matter — amusing it would be if it 
were not so wicked, so destructive, so ruinous to the parties I 
represent here. Read that first petition I have called your 
attention to. " Ten or twelve thousand acres," they say ; and 
when you come to take the evidence, on their own showing, 
there were but about five thousand and sixty, all told ; taking 
their own sworn estimates, not measurements, mark you ; " and 
that meadow-land," the petition goes on to say, " was worth a 
million dollars at least." $100 an acre, taking it all the 
way from Billerica up, would be 1400,000 ; |200 an acre, is 
$800,000 ; at $250 an acre, it would be worth $1,000,000. 
They come here and tell you, and really ask you to base your 
action upon it, that that meadow-land was worth $250 an acre, 
at least, more than sixty years ago. Gentlemen, you will not 
believe it, nor will any body else that has lived in the country 
and owned land there, as I have a good deal of my life. Pretty 
good land, indeed first-rate land, and tillage land to, that five- 
and-twenty miles back, will now bring — isn't it so ? — $100 an 
acre. Pretty good land, first-rate tillage land, will hardly 
bring that sum ; they don't sell meadow-land for any such 
mark, twenty to thirty miles back from the coast, and never 
did do so. 

BENEFICIAL RESULTS OF THE FLOWAGE ACT. 

And now, gentlemen, I want your attention for a moment to 
another subject, which I had almost forgot in my haste. The 
matter is not important, but I can't but allude to it as my friend 
on the other side has favored us with his opinion on it. He tells 
us that the Flowage Act is of doubtful expediency, as well as 
constitutionality, and that it cannot be heresy now to say so, 
because the idea has been sanctioned by the chief executive 
of the Commonwealth. I am not going to permit myself to be 
led away into a long discussion of that matter. In my judg- 
ment, the objection to that Act arises mainly from giving undue 
weight to mere abstractions, and from a want of experience and 
knowledge of the practical workings of the law. 



30 

Our Flowage Act has always substantially been the law of 
Massachusetts. In our neighboring State of New Hampshire, 
•with capacities for manufacturing such as are nowhere else, 
certainly in the United States they have never had any 
Flowage Act, and any man who owned a piece of land worth 
sixpence could put his bar upon any improvement that was 
being made. I am willing, gentlemen, coming from Massachu- 
setts, and all my ancestors before me being Massachusetts men, 
I am willing to look to-day at Massachusetts, with her mills and 
her manufactures, and her agricultural prosperity also, and 
compare her with New Hampshire, — a most respectable State, 
I agree, gentlemen, but one which will in no way compare 
favorably with our own Commonwealth, either in wealth, man- 
ufacturing, or agricultural prosperity. Indeed, sir, I was 
reminded of the remark made by a distinguished man in refer- 
ence to New Hampshire, the truth of which both my friends on 
the other side have illustrated by their own acts and adoption of 
it — " a capital State to emigrate from, sir." I am only happy 
that the truth of this remark has given us both my friends on 
the other side, and many other of our best men. I am willing 
to take New Hampshire with no Mill Act, and Massachusetts 
with one, and compare their agricultural or general prosperity. 
In my judgment, no law has contributed more to the general, or 
even the agricultural prosperity and wealth of Massachusetts, 
than the Mill Act ; and you will find no complaint of it, as a 
general thing, among the real genuine farmers, who get their 
living by farming, instead of playing at it ; and let me tell you 
there is no worse enemy to the real true interests of the farmer 
in Massachusetts, than he who in pursuit of a mere abstraction, 
creates distrust in those engaged in manufactures, or does not 
seek for the largest possible investment of capital in that business. 
Not a dollar can be invested in manufacturing in Massachusetts 
without positive benefit to agriculture ; and just in proportion 
as manufactures flourish and increase here, in the same propor- 
tion will agriculture flourish and prosper. 

VALUE OF THE LANDS. 

But now to return to the exaggerated estimate of the value 
of the lands in question. The petition estimates them, as you 
have seen, at the enormous value of from one to two millions, 



31 

and my friend who closed on the other side, in utter despair of 
finding evidence to sustain the petition, has given us his opinion 
as to how much would be and was their natural yearly product. 
And he makes it, as I recollect, that each acre would yield a net 
profit equal to six per cent, on 8250 — a remarkable coincidence 
between my friend and the petitioners. But the trouble is that 
such is not the way to prove the value of lands. Nobody, you 
know very well, would act on such proof — invest his money on 
it. It is easy enough to estimate, but hard enough to get the 
estimated number of hard dollars off the land. Such at any 
rate is the experience of most men. I have much faith in my 
friend's legal opinion, but permit me to say I should prefer to 
take the opinion of some good working farmer upon a question 
of agriculture — of one who obtained his living from his own 
work, on his own land. Those of you whose attention has ever 
been directed to the subject, and listened to trials in court 
where the value of land has been in controversy, have been 
surprised, no doubt, at the fact that you can generally prove by 
opinions and estimates from fair witnesses enough, that the 
value of any land ought to be and is very much greater than 
any price it will sell for. Indeed, so universally true is this, 
that for the last twenty years, having had a somewhat wide expe- 
rience in trying cases where lands had been flowed by dams, I 
have yet to hear of a single instance where the land-owner 
complained that he did not receive the most liberal compensation 
for all the injuries suffered. So that, so far from farmers 
generally considering the flowage of their meadows by a mill- 
owner a disadvantage, it is now generally got to be considered 
that there is no way in which the owner can realize so much 
money out of meadows, as by having them flowed by a 
responsible mill-owner. 

And in this. connection, gentlemen, let me have your attention 
for a moment to another estimate, made by some distinguished 
agriculturists, whose prejudices are enlisted in this matter, 
showing there is nothing too extravagant to be proved, to raise 
the value of these lands. In the report of the evidence by the 
committee of 1859, ydikwill find that Mr. Wood and Lieutenant- 
Governor Brown say that the mud on this land is worth, at the 
least calculation, two dollars a cord. I only allude to this to 
show how easy it is to exaggerate every thing. It comes from 



32 

the testimony of two of the most eminent gentlemen engaged 
in farming in Massachusetts. They say that the mud on this 
land is worth two dollars a cord at the least calculation. Well, 
I had the curiosity to see how much these meadows were worth, 
because it struck me they were getting to be mines of untold 
wealth. They testified that half of these meadows were covered 
three and one-half to seven feet deep with this valuable material, 
worth two dollars a cord. There are some 43,560 square feet 
in an acre, and taking five feet as about the medium depth, 
you will find, sir, that there are about 1,700 cords to an acre of 
this material that is worth two dollars a cord at the least possible 
calculation, carrying up the present value of that land, not to 
1250 an acre, but to about |3,500. 

I am sorry my friend stopped short with two hundred and 
fifty dollars an acre, when he could have proved just as easily 
and just as satisfactorily, by sworn testimony, that thirty-five 
hundred dollars was the proper figure to put it at. I only 
say again, I allude to this to show how utterly misleading, 
gentlemen, all such estimates are, and how unsafe as a ground 
for action. 

Again, gentlemen, in reference to the value of this land as 
testified, I have no doubt you have before you in the report of 
the evidence every piece of land that has ever been sold as high 
as seventy-five dollars or one hundred dollars an acre ; and you 
will find but few, very few, instances of that kind. But when 
you come to a matter of opinion, every thing is changed. Men 
look back and say, and undoubtedly make themselves believe, 
" This land was worth about one hundred dollars an acre in 
years gone by." Now, gentlemen, I cannot controvert that 
mere opinion, and will tell you why : I cannot go back to the 
old assessors' list and undertake to pick out the assessed value 
of the meadow-lands, because, in olden times, all lands were 
assessed together, the farm was assessed at so much, including 
all kinds of land. I tried that, and found it utterly impossible 
to arrive at any valuable result. I could not find out by the 
sale of it, because meadow-land and other land were generally 
sold together ; so that there was no way of getting at, satis- 
factorily, the true market value of the meadow-land separately. 
We have the testimony of Lieutenant-Governor Brown, of 
Concord, and Mr. Wood, who testified to the mud being worth 



33 

two dollars, that the selling price of the best tillage land, in 
Concord, in 1859, was one hundred dollars an acre. They 
wanted to have you put this at some two hundred and fifty 
dollars or three hundred dollars an acre, three times as much 
as the selling price of the best tillage land in Concord, where 
they raise men more fit for cabinet officers, as my friend says, 
than in any other part of the world — they think so, undoubt- 
edly ; and I think it may be said in passing, that it is quite 
apparent the good people of that town need have no fears of 
losing any thing by not stating their claims high enough. 

Now, sir, I say, upon this proposition, I can show you, by 
positive testimony, contemporaneous testimony, that this land 
was not of the value they put it at, in times gone by. In the 
first place, gentlemen, when we are told of one hundred dollars 
or two hundred and fifty dollars an acre being its fair value, I 
"«^ant to see how much their best lands are worth by their own 
estimation. I happen to have the printed report of the asses- 
sors of the town of Wayland, for the last year, 1861, and wliile 
I give you the result of their appraisal, I beg of you to recollect 
that now our assessors are under oath to appraise every piece 
of land at its true cash valuation. And, gentlemen, all the 
tillage land in the town of Wayland averages but about forty- 
five dollars an acre ; there are but about six or seven acres, I 
think, in small lots of an acre or two each, that come up to a 
valuation of a hundred dollars an acre. But they want you to 
believe that this meadow-land was worth two hundred and fifty 
dollars an acre sixty years ago, which is five or six times more 
than the value of their tillage land at this time. 

Again, I say, gentlemen, the land was not worth so much in 
years gone by as they say it was, and I will tell you why. I was 
amused, in looking at the first petition in 1859, in connection 
with the report of the Commissioners of this year, to find the 
petitioners saying — you will find it upon page 15 of the 
memorial, in the report of 1859 : " The yield was fi-om one to 
two tons to the acre, all good stock hay ; " — and now mark — 
" and much of it, known in this district by the term ^ pipes, ^ was 
so nutritious and attractive, that creatures would suspend their 
cheiving-, even of the finest English hay, upon hearing- the 
peculiar rustle of ' pipes ' upon the scaffold, and ivait to be 
served with it.^^ And the complaint most plaintively urged is 
5 



34 

that we have destroyed the " pipes " — that their pleasant rustle is 
no longer heard in their barns and on their scaffolds — and that 
their cattle are deprived of their accustomed and dearly loved 
feast upon the "pipes." That is a great ground of complaint most 
eloquently urged, gentlemen. Your aid is invoked to save the 
" pipes ; " to have that gentle " rustle " heard again upon the 
scaffold, so that the cows may again stop their chewing, " even 
of the best English hay ! " " Pipes " is the burden of their 
song ; to the music of the " pipes " they tell the sorrowful tale 
of their wrongs. I want to call your attention to and deal 
with some facts about these same " pipes," which cattle love 
above all other things, and the condition of the land on which 
they grow. These good people of Sudbury and Wayland tell 
you that the meadows, up to 1828, were good, solid, firm earth • 
that any body could drive a team of horses or oxen over them 
clear to the very verge of the stream ; there was no soaking 
with water, no sliaking bogs, no soft quagmire, but all was 
solid and firm, and that getting the hay upon tliem was like 
the vintage in the South of Europe, or perhaps the hop harvest 
in Kent. 

Now, sir, we have some information. in this report which we 
did not ask for, though I am glad it was given us. You find 
that the Commissioners have reported, and their report is final, 
and my friends on the other side are satisfied with it, the 
character and condition of the lands fit for growing " pipes." 
The petitioners say, in their memorial, " Much of this produce 
was ' pipes ; ' " their complaint is that the " pipes " have been 
ruined. Now the Commissioners say — what, do you think ? 
that the " pipes " land could be teamed over, as 1 have already 
said, without the slightest difiiculty, witliout wetting the hoofs 
of the oxen ? By no means ; quite another and different story. 
On page 28 of the report, the Commissioners say : " Where the 
surface of the water, in the ordinary summer condition of the 
river, stands one-tenth to three-tenths of a foot above the general 
surface of the meadoivs, pipes groiv luxuriant /i/^ And they 
go on to say, that just as the water recedes below the surface 
of the meadows, pipes disappear in the same proportion. 

You see how these gentlemen have been most industriously 
engaged in deceiving themselves — willing to be deceived, un- 
doubtedly. They come here in one breath and say to you, 



35 

" Why, gentlemen, these meadows were all as hard and level 
as a house floor formerly, in their ordinary summer condition • 
any thing could be teamed over them, and much of their pro- 
duce was pipes, which cattle love above and beyond all things " 
— and that is the ground of their complaint. Yet you find 
that these pipes will not grow until the meadows are flooded 
from an inch and a third to three and two-thirds inches deep in 
their ordinary summei; condition. Don't you see how absurd 
this is, how laughable it would be, were it not for the wicked 
and disastrous consequences that would result from acting on 
the claim ? They say they must have the water taken off two 
feet from these meadows because, in the olden time, this 
peculiar vegetable, " pipes," grew there ; and you find that the 
•' pipes " would not grow unless the water, in the ordinary sum- 
mer condition, stood above these meadows from one to three 
inches. That was the condition that would grow " pipes " — 
the only condition. According to that, gentlemen, it would 
seem that the trouble is that the water on the meadows has 
been lowered, not raised. 

THE MEADOWS ALWAYS WET. 

But, gentlemen, in trutli and fact, this additional wetness of 
the meadows has been exaggerated as the value of the meadows 
has been exaggerated, because, so far from the fertility of these 
meadows having been the cause of persons settling in their 
neighborhood, you will find, if you refer to the history of Con- 
cord, that a large portion of the people of that town, directly 
after they settled upon these lands, moved away because of the 
wetness of these very meadows. Instead of going there on 
account of the meadows, when they got there, they found the 
meadows so covered with water — so history tells us — tliat they 
were obliged to remove. My friend here, on this point, again 
branches off" into a disquisition about the meaning of the word 
" meadows." He says that it meant ploughed land — where they 
raised Indian corn ; and that our forefathers went up there and 
settled, because of the peculiar fitness of the meadows for 
raising Indian corn. If, instead of bringing in Webster's 
Dictionary upon another point, my friend had turned to old 
Sam Johnson to ascertain what meaning was attached to the 
word meadow in England, he claiming that our fathers used it 



36 

in that sense, he would have found that in England it meant 
lands which annually produced grass, and watery, though not 
covered with water. Meadows in this country — unless you 
apply the term to the interval lands upon the Connecticut — 
mean wet, damp lands, that yearly produce grass. My friend 
says our ancestors went up there to raise Indian corn. Wouldn't 
you liked to have seen tlie old fathers, the Concord and Sudbury 
people, planting Indian corn on those meadows ? The allega- 
tion is that most of these lands, in early times, produced " pipes," 
which the cattle loved more than any thing else ; and we have 
seen that "pipes" will not grow unless water covers the land to 
the depth of from one and a third to three and two-thirds 
inches, in the ordinary summer condition of the river. Yet 
my friend says the settlers went up there to plant Indian corn ! 
Why, sir, it was a matter of complaint, as you will find by 
referring to the extracts from the public records in the book 
which you have before you, — it was a matter of complaint in 
1636, in 1644, and in 1672, by the people of Concord and 
Sudbury, that their meadows were flowed ; they were trying to 
find some means of getting the water from them. You find 
that in 1742 almost all the meadow owners of Sudbury and 
Wayland petitioned the governor and council for the appoint- 
ment of a commission to remove the water from their meadows, 
representing that the water stood upon them frequently and 
long, so as to render them luiprofitable, and destroy their hay 
and grass. Gentlemen, I beg your attention to this upon the 
question of value. In 1742, all joined in a petition to the 
governor and council to adopt some means to take the water 
off their meadows, which had been rendered unprofitable in 
consequence of the water standing so much and so long upon 
them. The owners of these meadows — worth, we are told, 
8250 an acre ! — all joined in a petition representing that the 
State must interfere, because those meadows had been rendered 
unprofitable — almost destroyed. Tliis was in 1742, one hun- 
dred and twenty years ago. Do you think, gentlemen, the 
meadows were then worth $250 an acre ? Again, in 1789, 
before this Middlesex Canal was thought of, before the charter 
was passed, you find the same meadow-owners, all of them — 
or the owners of the same meadows whose owners had 
petitioned in 1742 — joining in another petition to the governor 



37 

and council asking for aid, saying that their lands were flowed 
in summer time, that the water stood, in summer time, upon 
those lands, and had so stood as to render them of little value. 
It is true they do say, in that petition, " formerly of great 
value," now of little value. In 1816, you find the sons of the 
same men, judging from the names, joining in a petition to the 
legislature, saying that the water stood on those meadows in 
the months of June, July and August,- and that their meadow 
lands, " heretofore valuable," were of little value. 

THE QUESTION OF VALUE, AGAIN. 

Gentlemen, I want you to deal with this matter as men of 
common sense. They claim, on the one side, that these lands 
were worth $250 an acre at the commencement of the present 
century. What do you find ? You find from 1636, running 
down to nearly 1700, that on three or four different occasions, 
these meadows were complained of as being so wet that they 
depopulated those towns — people would not settle there. You 
find, in 1742, the owners of those meadows saying that they 
were rendered of little or no value. I ask you, gentlemen, if 
you believe that, in 1742, lands that were worth $250 an acre 
would be said by the owners to be of little or no value ? You 
find that, in 1789, the owners of those same lands say that 
those lands, " heretofore valuable," were of little or no 
value. You find the same thing said in 1816. I pray to know, 
gentlemen, when those lands were so valuable as they tell us ? 
"When was it that these meadows were of such value ? Am I 
not dealing fairly with them, gentlemen? I am taking the 
representations made to the governor and council by the 
owners of those lands as a basis for action by the Common- 
wealth. I am telling you what they said in 1742, in 1789, and 
in 1816 ; and they said, on those three occasions, that tliose 
meadows were of little or no value. The question is, at what 
time within the last century were those lands worth from $150 
to $250 an acre. It is for you to say, gentlemen, looking 
through all the evidence, whether you do not know from the 
evidence, — their own evidence, — that those meadows never 
approached the value which they claimed that they possessed. 
In the petition from the town of Sudbury they only claimed that 
they were worth $75 an acre, but they never approached even 



38 

that value. The truth is, that they have magnified the value 
as they have the quantity of these lands. They said there were 
ten or twelve thousand acres afifected by the dam at Billerica ; 
it turns out, when we get at the facts, that there are not 
a thousand acres so affected. They represented that at some 
time, going back beyond the memory of man, there was some 
tradition that these meadows were worth from $150 to 8250 an 
acre. It turns out that from 1636 down to 1816, they made 
the same claim that they do now, that those lands were injured 
by water. They exaggerated the value in the same way that 
they exaggerated the quantity. 

THE CLAIM THAT THE ACT OF 1860 IS IRREPEALABLE. 

I want to call your attention now, Mr. Chairman and gentle- 
men, to another matter. I understood yesterday, and from the 
opening argument of my friend on the other side, that a claim 
was made that there were certain rights created by the 
passage of the Act of 1860, and by the action of the Com- 
missioners appointed under it, which rendered it obligatory 
upon the legislature not to repeal this Act. Perhaps the 
answer to this would be: — If the legislature should pass an 
Act which it is not within your power to repeal, no possible 
harm can be done to any body, because, if you undertake to 
repeal it, if it is unconstitutional, if you have no power to do it, 
the courts will settle the matter right, and the rights of every- 
body will be protected. Nobody will be harmed by it, if you 
have no right to repeal it. But I do not put it upon this 
ground. I would ask your attention for a moment to look at 
the claim made — that a law passed by the legislature of 1860, 
a general law, not a contract with any human being, a law 
under which no man has invested a single cent, a law which 
no person could claim was a contract made with him in any 
way, a law passed by the legislature, and in which the legisla- 
ture provided that the public, the Commonwealth, should do 
the deed that was to be done, cut down the dam, and pay the 
damages — when that law is passed, it becomes over and above 
all other laws ; instead of a law of the legislature, subject to 
repeal by any subsequent legislature, it becomes like a law of 
the Medes and Persians, so fixed that it cannot be repealed. 
Why, gentlemen, the statement already made is a sufficient 



39 

answer. This is not a contract witli other parties, not a law 
under which other parties have invested their money, which 
they have acted upon, wliicli they have paid for, which they 
have a right say you cannot repeal unless you repay them what 
they have invested under it. Who is there in Billerica, in 
Sudbury, in Concord, or anywhere else, who has ever invested 
a dollar under this law ; who has ever paid any thing under this 
law, who has ever done any thing under this law in reference 
to whom it can be said. You cannot repeal that law because it 
takes from him the property that he has invested under it ? It 
does not approach that class of cases — and I think you will 
appreciate the argument here, gentlemen, — in which the legis- 
lature makes a contract with a corporation. There is no 
contract made here with any human being, and the same legis- 
lature that passed the law can repeal it, and nobody can say 
them nay, — more especially, sir, can it be repealed when no act 
has been done under it. Why, gentlemen, this same thing 
was ventilated before the last legislature ; and you will find an 
instance, in this connection, of what the committee considered, 
I think, rather sharp practice, to say the least. While the 
committee of tlie legislature were investigating this very 
question whether the law should be suspended or not, as you 
have heard it from Mr. Hudson, these meadow-owners were 
before the commissioners, undertaking to get them to do an act 
which would take from the legislature the power to suspend 
that law. They claim to have done some act, in reference to 
taking off the flash-boards, which would render it impossible 
that this Act should be repealed. That matter was dwelt upon 
last year, and you will see that the committee last year set their 
seal of condemnation upon that conduct, because they went on 
to provide specially that no act done under the Act of 1860 
should in any way affect the right of. any of the parties, should 
in no way interfere with the right of the legislature to suspend 
the Act. Why, gentlemen, they have no more right, of course, 
to suspend an Act a day than they have to repeal it utterly and 
entirely. If it is an Act under which rights are vested, you 
cannot interfere with it at all without compensation to the 
parties interested ; but any Act, not in the nature of a contract, 
may be repealed by any subsequent legislature. I feel, Mr. 
Chairman, that this must be apparent to the common sense 



40 

of every one. I know that you will not question, for a moment, 
that the same power which passed this law, which breathed into 
it life, which gave it power to injure, has the power to take 
away the life which was breathed into it. No man's rights can 
be said to have been taken away by this law. You passed it, 
you can repeal it. The time has gone by when it can be 
claimed, with reference to laws of this sort, that they can be 
passed by one legislature and cannot be repealed afterwards by 
those who come after them and sit in their seats. 

CLAIMS OP THE PETITIONERS SUSTAINED BY THE COMMISSIONERS. 

Now, gentlemen, passing from that, — because I do not believe 
that it is really relied upon to any great extent on the other 
side, and that you will give but a passing consideration to it, — 
I want your attention now to a consideration of the result 
which has been arrived at by this commission provided for last 
year. It turns out, by the report of these Commissioners, that 
what has been alleged throughout, by the parties at whose 
instance the Act of 1860 was passed, the grounds upon which 
they have always put their claim, — it turns out, I say, that 
these are all without foundation in fact, and that the claims 
which we, on our side, have made from the beginning to the 
end, which we began with in 1859, and said were then true, 
which we have said all along and down to the present time 
were true, have been entirely confirmed by the report of that 
commission. All this clamor on the other side, that the dam 
at Billerica, be it higher or lower than it was before 1798, has 
flooded, has drowned out, has destroyed the meadows in Sud- 
bury and Wayland ; all that, I say, is forever and entirely put 
an end to, because we have the report, from absolute experi- 
ment, that the whole of that dam, not any thing that may 
have been added to it in 1798 or in 1828, but that the whole of 
that dam, be it higher or lower, does not affect the water in 
the towns of Sudbury and Wayland, where more than three- 
quarters of these meadows are situate, at all ; not only does 
not raise the water two feet upon them, and destroy them, or 
render them what they were not, before the dam was built, but 
it docs not raise any water, substantially, upon those meadows. 
More than that — and I ask you to look at the argument of last 
year, and the evidence we offered in 1859 — more than that, 



41 

this report shows this, that within half a mile from the dam, 
before you come to the meadow region, this dam would not 
affect the water quite eight inches. Such is the report of the 
Commissioners. What, then, is the proposition, gentlemen ? 
I am not here to deal with the assertion of my friend on the 
other side, when he said that it was the merest absurdity to 
attempt to argue and assert, and attempt to make people believe 
that a dam that was higher tlian the bottom of a river for five- 
and-twenty miles, would not raise the water for five-and-twenty 
miles. I met that last year, and it is not necessary for me now 
to go into the minutia? and detail to the extent I did then. 
We have the conclusion of the committee, upon the evidence 
before them, that our dam would not raise the water in Sudbury 
and Wayland, would not raise the water at the Fordway, more 
than six or eight inches. That was the whole question. Will 
the dam raise the water more than six or eight inches at the 
Fordway ? Our proposition was, and we had experiments to 
prove it, that it would not. This year we have had experi- 
ments made, which you are to take as conclusive, which show 
that the water is not affected at all by the dam, where the most 
of this complaint comes from, and that at the very commence- 
ment of the meadows, and within half a mile of the dam, it 
would not be affected quite eight inches by taking away the 
dam entirely. You have that fact, gentlemen, as a proposition 
proved by experiment. But notwithstanding all that, I find my 
friend who opened this case drawing upon his imagination, and 
my friend who closed the case yesterday again urging that it 
was nonsense to say, and that nobody would believe it, that a 
dam which was higher than the bottom of a river for five-and- 
twenty miles, would not affect the water at any point on the 
river where the bottom was below the dam. It is not necessary 
for me to controvert this, because a fact is stronger and better 
than the theory of any body. I do not care whether my friend's 
mind is strong and robust enough to control his own theories 
or not, as some men's are not ; it is sufficient for us that you 
have the fact before you ; you have the experiments, and 
according to the experiments, the dam does not affect the water, 
where most of the complaint is made, and does not raise the 
water, half a mile above the dam, quite eight inches. 

6 



42 

But, gentlemen, if I desired, I could show you, as a matter 
of theory, deducible from the facts before you, that the dam 
could not affect the river up to the point they say it does. 
My friend harps constantly upon this fact, that the dam is 
higher than the bottom of the river. Gentlemen, you know, if 
he does not — and if you know it that is all I care for — that 
what makes a dam, what makes an obstruction of water, depends 
upon the space there is left for the water to pass along in ; and 
if you have at the dam a certain space, 127 feet, to pass the 
water over, you may go up the stream to any point, and you 
may have the bottom of the river one, two, or three feet, or 
even more than that, lower than the dam, and the water will 
not be affected by it ; but if you narrow that stream, if, instead 
of 140 feet, you narrow it to ten feet, you know that such a 
space will operate as a more effective obstruction to the water 
than your dam, though your dam be three or four feet higher 
than the bottom of the river, because there is not the space for 
the passage of the water there that there is at the dam. The 
result is, that this space being lessened — and it is immaterial, 
is it not, whether it comes from building a dam, or contract- 
ing the sides, or filling up from tbe bottom to the top, by weeds 
or rocks, or any other obstruction — the water cannot pass freely 
along, and it will be raised higher at that point, although the 
bottom of the river is lower than the dam. The obstruction 
caused by a dam, or any thing else, depends upon the capacity 
of the river to pass a certain quantity of water at the point in 
question. It is so here, gentlemen. Some of the witnesses 
have told you, that a lessening of the width of the space for 
the water to pass over, by weeds growing up, or by rocks 
deposited in the river, would effectually flood back the water, 
and therefore be as effectual a dam as the dam itself. Theory, 
gentlemen, is sufficient to account for the fact, if it were nec- 
essary to do it. I only allude to this to show you how our 
friends have been misled on the other side, by constantly harp- 
ing upon the fact, that there is no point upon the river, for 
twenty miles, more or less, that is not actually lower than the 
top of the dam. Why, gentlemen, ordinarily, where a dam 
would effect the water up to a certain point, ten or fifteen 
miles, you would find a regular slope, would you not ? But if, 
in any place, you found, from some cause or other, some 



43 

obstruction in the river, either by contracting the sides of the 
river or by putting obstructions in the bed, there was a distinct 
and different slope — that there was a rapid, a fall, which was 
not flowed out by the dam below, would you not be right, ordi- 
narily, in saying that the effect of the dam below was lost when 
it came to this fall? When you have the slope broken, and 
have a comparatively rapid fall, you see that the effect of the 
dam below ends, ceases at that point. That would ordinarily 
be the case, and it is shown to be the case here, substantially. 

Again : I want your attention for a moment longer upon 
this point, not because it is exactly necessary, for I am content 
to leave it with the finding of the Commissioners, but I want 
you to examine the testimony of one of the agents of these 
very parties, Mr. Simonds, of Bedford, who testified before 
the committee of 1859. It shows, sir, that some of these gen- 
tlemen are dealing with edged-tools, and sometimes get their 
fingers cut. He put in as a piece of testimony on his side of 
the house, and as drawing the minds of the committee to the 
result he sought, this statement, which you will find on page 
158 of the report : — 

" I also measured the depth of the water at a place a short distance 
above the dam, known as the Fordway, and found four feet in depth, ia 
the current, or boat channel, at the same time — the 20th of May. May 
25th the water had risen — at Carlisle Bridge, one foot seven inches ; at 
the Fordway, one foot two inches ; and on the dam it had risen two 
and a half inches." 

Now, sir, to what conclusion does that bring your mind ? 
Don't you know, gentlemen, every one of you, that from that 
testimony of Mr. Simonds, the same result was necessarily to be 
arrived at that has been found by these Commissioners ? What 
was it ? Why, that the obstructions at the Fordway, and above 
the Fordway, are greater than the dam, and cause the flooding 
of the meadows more than the dam. Why ? Because you 
find, that in five days, the same amount of water that passed 
by Carlisle Bridge, passed by the Fordway, and passed by the 
dam, would, on account of the obstructions, raise the river at 
the bridge one foot seven inches, and at the Fordway, for the 
same reasons, increase it one foot two inches, while at the dam 
the same water would pass off, on account of less obstructions, 



44 

causing a rise of only two and a half inches. Do you not see 
that the obstructions to the passage of the water as it flows are 
above the dam ? The water rises miles above the dam. Why ? 
Because it meets obstructions there ; because from the bends 
and the bars in the stream, and a variety of obstructions, the 
capacity of the stream is not sufficient to pass it down readily ; 
but when it gets down to the dam, the capacity is sufficient to 
carry it off, so that instead of rising, in five days, nineteen 
inches, as at Carlisle Bridge, or fourteen inches, as at the Ford- 
way, it only rises two and a half inches. Do you not see that 
the capacity of the dam to pass water is greater than that of 
the river above, and that the trouble is, that the capacity of the 
stream is not sufficient, at many places, to carry oif the water 
that comes down from above ? 

You are to deal with the report of the Commissioners as a 
fact ; and you would have no difficulty in coming to the same 
conclusion without their report. You have this fact establish- 
ed, beyond question or peradventure, that if you cut away this 
dam, which is said to raise the water two feet five-and-twenty 
miles above, it will only reduce the water a little short of eight 
inches, half a mile above. 

I want to call your attention to another proposition, gentle- 
men. I want you to look at these tables upon which this con- 
clusion is based. These Commissioners, some of them certainly, 
have sided quite strongly enough against us in the conclusions 
they have come to, and I want you to turn to the facts they 
have stated, upon which those conclusions are based; because, 
if you will look at the table which gives the average height of 
the water, at the diffi3rent stations, from the 2d to the 7th of 
August, you will find this remarkable state of things, — that for' 
five days previous to the 7th day of August, when they began 
to draw down the dam, the natural fall of the river at Barrett's 
Bar, in Concord, was ^^o^ of a foot. I beg your attention to 
this, gentlemen. For five days preceding the drawing at the 
dam, the fall from natural causes, just above Barrett's Bar, 
was j^Q of a foot — a little short of four inches. That was the 
natural fall, before these experiments began. At the same 
place, from August 7th to August 12th — the drawing of the 
water beginning August 7th — you find that the fall of the 
water in five days was -^^^ of a foot. If you look at the table, 



45 

you will see that the other conditions affecting the result were 
about the same on the first five days as the last ; that about 
the same amount of rain fell during the progress of each ex- 
periment ; that there was about the same letting down from 
the Assabet during both periods. 

What was the result ? Why, you find that the difference 
between the fall at Barrett's Bar in the first five days and the 
last five days is just y| ^ of a foot ! You may try the experi- 
ment, you may look at these tables and examine them through 
and through, and you will find that you cannot get, by drawing 
down the water, a fall of much more than an inch, above Bar- 
rett's Bar, in addition to the fall resulting from natural causes. 

Then look at the Fordway, (Station 28,) and you will find that 
the difference between the fall of the river in the first period 
of five days, and the latter, was a fraction over five inches in- 
stead of eight inches. The Commissioners take the whole fall 
at that point and attribute it to the experiment, when three 
inches of it was due to the river being in a falling state at the 
same time the experiment was being made. 

Now, gentlemen, the Committee say that the dam raises the 
water at the Fordway about eight inches ; but the trouble is 
that when you come to look at their own figures, making part 
of their own report, you must really come to the conclusion 
that the experiment above the Fordway and above Barrett's 
Bar, only shows a reduction of about five inches at the former 
station, and one inch at the latter. That is very remarkable. 
If you look at the experiments reported by the committee of 
1859, you will find that such would be the reduction, and the 
only reduction, which could be accomplished by drawing down 
the dam. 

Again — simply to allude to this and pass from it — you will 
find, from the experiments made on the second, third, and 
fourtli of November, which are reported on page 123, and 
those of the eighth, ninth, tenth and eleventh, on page 133, 
that there was a drawing of the water at the dam at those two 
points of time. You will find there, sir, that if you take the 
lowest point which the water reached at the dam, on each of 
those occasions, the lowest point it reached at the Fordway, 
and the lowest point it reached at Barrett's Bar, — and I beg, 



46 

gentlemen, that you will examine these experiments, — you will 
find, I say, the river being then clear of obstructions, that the 
lowest reduction at the Fordway was about four inches, and at 
Barrett's Bar from one to two inches ; — only going to show that 
the result we arrived at from an examination of their tables 
made in the summer, is verified by an examination of their 
tables made in the fall. 

You find then, gentlemen, from the report of the Commis- 
sioners, the fact — and it is a fact that we have always claimed — 
that the dam at Billerica Mills, be it higher or lower than in 
1798 or 1828, does not substantially injure the meadows in 
Sudbury and "Wayland. You find that the rise of water half 
a mile above the dam, where the meadows commence, is less 
than eight inches, and that substantially runs out before you 
get to those places from which the main complaint comes, — 
where three-quarters of the injury is alleged to have been done, 
— where it is claimed that the water, in consequence of this 
dam, has flowed back some two feet. 

INCREASE OF WATER ON THE MEADOWS, AND ITS CAUSE. 

Now, gentlemen, I do not claim here, as I never have claimed 
upon any other occasion, that there may not be more water 
upon those meadows now than there was in years gone by. I 
have no doubt that the increase of water has been monstrously 
exaggerated, I am sure of it when we find a crop growing there 
in olden time which will only grow where the land is covered 
with water from one to three inches, in its ordinary summer con- 
dition ; but undoubtedly the meadows are wetter now than for- 
merly — and why ? Because, since 1812 or '14, or '16, when 
we first began on a great scale, the business of manufac- 
turing, when we first began to turn our saw-mills and grist- 
mills into mills for the manufacture of cotton, and wool, 
and iron, and wood, — from that time to the present there has 
been, in the summer, perhaps double the quantity of water 
running in the stream, in consequence of its being stored up in 
winter ; and, the stream having no increased capacity to carry 
it off, undoubtedly the meadows are wetter from that fact. 
There has been a constant increase, since 1812, of that business 
which requires the storing up of water in winter, and letting it 



47 

down in greater quantities in summer. The result is, that the 
water affects the meadows more now undoubtedly. I have so 
said always, and nothing different. I say it now, as I have 
always said it, and I ask you if I am not right. But while the 
meadows may be wetter, in consequence of what has been done, 
the extent of the increase has been enormously exaggerated, 
and we have contemporaneous testimony to that fact. The 
Commissioners tell you, that upon the Assabet and Sudbury 
rivers there are eighty-two mill-ponds or reservoirs for the 
storing up of water in winter, to be used in the dry season. Of 
course the meadows are wetter. Are we to blame for that? 
Are we to be punished for the sins of the eighty-two persons 
who pour water down this stream ? We say that our dam does 
not affect these meadows ; but they say, " True it is, you don't 
flow water back upon us, but so it is, that because there 
are some fifty manufacturers on these rivers, with reservoirs and 
mill-ponds to the number of eighty-two, who store up water in 
the winter, and pour it down upon us in the summer, our 
meadows are flooded ; you don't do the evil, you don't flood 
our meadows, you don't throw the water back upon us, but we 
are going to punish you for the wrongs we receive from others." 
Is not that it ? We don't do it, do we ? There is an increased 
amount of water, but we don't flow it back upon their meadows, 
we don't contribute to that increase. But they say, " We have 
so much of this water poured down on our meadows from these 
eighty-two mill-ponds and reservoirs, that we must destroy you in 
order to remedy the evils we have received from others." Is not 
that it, gentlemen ? But why should the sins of othei's (if they 
are sins) be visited upon our heads ? Ordinarily, it is enough 
for any one to be held responsible for his own acts. We have 
shown by these experiments that we have done no harm to any 
one. Why then should these sins of the mill-owners above us, 
if they are sins, be visited upon us ? These gentlemen complain 
that they have been injured. It is sufficient for us to answer — 
" You know from these experiments, if you can understand 
any thing, that we do not flow any of this water back upon you. 
If you are flooded, it is from other sources. Why should you 
visit upon us the evils and the misdeeds of other parties, over 
whom we have no manner of control ? " 



48 

THE DAM NOT RAISED IN 1798 OE 1828. 

Let me have your atteiition, now, for a short time, upon a 
question which has been opened here, although I say, in all 
fairness, I do not think it has much to do with this hearing — 
that is this, whether the dam has been raised since the incor- 
poration of the Middlesex Canal, — whether it was raised in 
1798, or again in 1828. I do not think, really, whether raised 
or not raised, that it is of much importance in the consideration 
of this matter, and I believe you will come to the same conclu- 
sion, and for this reason, — whether we have any rights under 
the Middlesex Canal Corporation or not, we own the land, and 
under our laws, we have a right to build a dam upon the stream 
and throw back the water, provided we do not injure our 
neighbors. Is it not a sufficient answer for us to make, so far 
as any thing can be urged against us ? Gentlemen, we claim 
that our dam injures no one. We have a right to build it, if 
such is the fact. It turns out, from experiment, that you v^ho 
most complain, you who own the meadows in Sudbury and 
Wayland, have not an inch of water turned back upon you by our 
dam ! Is not that a sufficient answer, I repeat, so far as we are 
concerned ? Therefore, I say, it is entirely unimportant whether 
our dam was raised in 1798 or in 1828. 

But the question may be of some importance in regard to 
another matter which has been introduced here. It is claimed 
here, by the gentlemen on the other side, that our dam was 
raised in 1798, and raised again in 1828. Upon the second 
proposition, so far as any reliance is to be placed upon human 
testimony, — so far as you can know from contemporaneous 
evidence, from the acts of parties, from the use of canals, the 
dam, in 1828, was no higher than it had been previous to that 
point of time, or than it had been, really, from the time the 
canal was commenced. You find, from the testimony of 
Mr. Baldwin, that in 1825, there was a bolt put in which 
regulated the height of the dam then, and it was the precise 
point which regulated the height of the dam in 1828, and which 
regulated the height of the dam in 1798. Further than that, 
gentlemen, if you will refer to the maps and drawings, in the 
report of the committee of 1859, which have not been con- 
trolled, or shaken in any way, about which there is no pretence 



49 

that they are not correct, you will find that the canal, at its 
greatest draught, would not give you more than three feet and 
six inches below the top of this bolt, and on an average not so 
great a depth. Now, it is a fact testified to, and not contra- 
dicted, that the original boats drew from three to three and a 
half feet of water ; afterwards, they were of less draught, as 
Mr. Wilson tells you. Therefore you must know, taking that 
fact alone, that from 1798 down to 1828, the dam must have 
been as high as it was after 1828. You will see, by looking at 
the plan, that if the dam had been any lower, there would have 
been no way of filling the canal, or using it after it was filled. 
Now, gentlemen, the question is, was the dam raised in 1798 ? 
What is the evidence that it was so raised ? We have not the 
slightest direct testimony to establish that as a fact. My friends 
on the other side say there was more water on the meadows above, 
after 1798 and 1828 than before, and that shows, they say, that 
there was a raising of the dam at those times. Don't you see 
how utterly unreliable such evidence is, because you find, by 
the experiments, that the dam, instead of raising the water two 
feet up in Wayland, does not raise it one incli ! The whole 
argument falls to the ground. The testimony to the raising of 
the dam comes mainly from the fact, as they say, that the 
water flows back upon the meadows further and deeper than 
before 1798. All this evidence is utterly worthless, because 
you find that the dam, at the highest point it was ever raised, 
does not affect the water in Wayland at all. If tlic water 
has been raised there, the change has been effected by other 
causes. 

Such is the evidence, and such are the facts, gentlemen, bear- 
ing on this proposition, and they are facts which address them- 
selves to those of you who have had experience in such matters. 
The whole head and fall is as great now and no greater than it 
was in 1798 — eleven feet. Looking at the little value of land 
then, compared with its value now, and at the fact that mucli 
more water was required at that time than at the present day 
to obtain the same power, owing to the ruder construction of 
machinery, do you believe that a dam with a head and fall of 
less than eleven feet would have been built and used at that 
time ? 

7 



50 

Again, gentlemen, look at the testimony of Mr. Theophilus 
Manning and Mr. Jonathan Manning — two old gentlemen intro- 
duced on the other side. Mr. Jonathan Manning tells you that 
the old dam, in existence before 1798, the Richardson dam, 
without flash-boards, flowed the water into the canal two and a 
half feet deep, and that the new dam, with the flash-boards on, 
as you know, only flowed the water three and a half feet into the 
canal. Then Mr. Theophilus Manning tells you, as you will find 
by looking at his testimony, that the old dam — the dam before 
the dam of '98 — had flash-boards upon it from six to nine inches 
wide ; he did not know precisely how wide ; he did not measure 
them, and of course could not tell. From that testimony you 
not only get the fact that the old dam witli its flash-boards was 
about the same height as the new dam built in 1798, also with 
its flash-boards on, but it answers another claim that has been 
set up here. What do they say ? They say, and they have 
persisted in it from beginning to end, that the dam was raised 
in 1798 and 1828 to a height three and a half feet above the 
old dam which existed before '98 ; but you find, on the testi- 
mony of their own witnesses, that the old dam, without flash- 
boards, would flow the water into the canal two and a half feet 
deep, within a foot as deep as would the present dam. Yet my 
friends say the old dam was three and a half feet lower ! at which 
height it wouldn't flow a particle of water into the canal. 

THE MISTAKE IN REGARD TO PAULKNER'S RACEWAY. 

One word, gentlemen, in reference to " Faulkner's Raceway," 
wliich my friend is to teach a starling to constantly scream in 
my ears. If I am never troubled witli any thing but " Faulk- 
ner's Raceway," my sleep or dreams will never be disturbed. 
" Faulkner's Raceway " indeed ! Except for the discordant tone 
in which my friend screams it to me, it gives me no trouble. 
Why didn't they come to me, if they thought there had been 
any mistake ? Why didn't they go to that gentleman who sits 
there, [Mr. Talbot,] if they thought there had been any mistake ? 
I say, and I have a riglit to say it, if any man thinks a mistake 
has been made, and will go to him, fairly and squarely, and say 
so, he will give every opportunity to set the matter right. I do 
not believe in going behind his back, and without his knowledge 



51 

interfering with his premises. I do not believe that any one of 
these Commissioners was ever appointed for that purpose. If 
they had gone to Mr. Talbot and said, " We thhik there is a 
mistake in that statement in reference to the measurements at 
Faulkner's Raceway, and we want to ascertain the facts," I 
pledge you ray word that every opportunity would have been 
given them to examine and see if there was any mistake. That 
was not done. They, behind our backs, measured in the wrong 
place. The trouble with their discovery is this, that while our 
measurements were in the Raceway, their measurements were 
in the pond, under some dam — the Lord only knows what dam — 
you find it in their plan ; in the pond, and beyond and above the 
Raceway. We have it here upon the testimony of old Mr. 
Manning, their witness, who says that he knew the Raceway 
long before the Middlesex Canal was thought of, that it has not 
been changed. We have it upon the testimony of every man who 
has been about those premises, that it has not been changed since 
1793. I do not care, gentlemen, if, before that time, there 
were gates where they are put on the plan, four, five, or ten 
feet deep. What we want, and all we want, is this fact — that 
since 1793, before the dam was built, in 1798, the bottom of 
that Raceway has not been changed. And who says that it 
has ? Our witnesses say it lias not ; their witnesses say it has 
not. They go into a pond above the Raceway and dig down, 
and they find some structures which tends to show that at some 
time or other — the Lord knows when — there was a gate that 
was lower than the mouth of the Raceway as it has been since 
1793. 

" Faulkner's Canal ! " Do you think I am disturbed by that ? 
Do yoii you think my clients are disturbed by that? Why, 
gentlemen, they do not toucli our proposition or pi*oof derived 
from that Raceway in any degree whatever. They have at- 
tacked something other than what we put in, than what we 
have set up or relied upon, and my friend and his starling may 
cry "Faulkner's Raceway" to their hearts' content, and it will 
not disturb any body's quiet but his own. 

But I am entirely content, gentlemen, if that is more satisfac- 
tory to my friends on the other side, to leave Faulkner's Race- 
way out of the question. I should not have said any thing 



52 

about it, if so much noise had not been made by my friend on 
the other side, who seems to think that we are to be frightened 
by this bugbear, which has no existence except in his own 
imagination. 

[Mr. Griffin. We want it in.] 

THE TESTIMONY OF THE PENSTOCK. 

Mr. Abbott. Have it your own way. In or out, it is 
all the same to us. With or without Faulkner's Race- 
way, I can prove my proposition strong enough to satisfy any 
reasonable man. What do you say to the penstock ? We have 
the measurement of the penstock from the Commissioners of this 
year. What was the penstock there for ? It was to carry water, 
so it is sworn, to the wheel of the grist-mill by which the 
Billerica people, under the old grant, were to be furnibhed with 
meal ; and I noticed that while my friend had so much to say 
about Faulkner's Raceway, he did not say a word about the old 
penstock. It reminded me (I don't want to say any thing offen- 
sive) of the old saw that one who is running off with something 
in his pocket belonging to somebody else, is often the loudest in 
crying " stop thief! " How far do you think the bottom of that 
penstock is below the dam ? A little more than two feet — short 
of one inch more than two feet below the present height of the 
dam. When was that used ? The dam, you recollect, was the 
dam of 1828, that flooded the meadows for five-and- twenty miles 
above, because it had been raised a foot or eighteen inches — 
they cannot tell precisely how much. Well, gentlemen, you will 
find by Mr. Wilson's testimony, that the penstock carried water 
to a grist-mill, which ground, as I said before, all the meal for the 
town of Billerica, for which the privilege was granted in 1708 ; 
and that mill got so old that in 1810 it was abandoned and given 
up as a broken down concern, and has not been used since. Upon 
the evidence, it was there long before, no doubt, the dam of 
1798 was built, for in those times a mill would not be given up 
as old and ruinous from twelve years' use. The bottom of that 
penstock is two feet below the top of the present dam. Do you 
think that penstock was ever put in to be used unless they had 
a dam the top of which was at least two feet above the bottom 



53 

of the penstock ? If this penstock had been used for more than 
a dozen years — given up, you recollect, in 1810, because the 
mill was old — the old dam before 1798 must have been as high 
as the present one. 

I say again, gentlemen, I do not care any thing about 
Faulkner's Raceway. It may be put in or left out, just as it 
suits my friends on the other side. You have this fact of the 
old penstock upon uncontroverted evidence, and you cannot 
get over it. What had they to oppose it ? They say we raised 
our dam in 1828, because we flow their meadows in Sudbury 
and Wayland ; and we show that the dam, at its greatest height, 
does not throw a particle of water back upon those meadows. 
The whole argument falls to the ground. 

Osgood's dam. 

Again, gentlemen, the claim here yesterday was that in 1723 
Osgood's dam was abated as a nuisance. Well, gentlemen, 
Osgood's dam, unless it was as high as the present dam, flash- 
boards and all, would not have affected the water even at the 
Ford way. If it was a nuisance in Sudbury and Wayland, I 
reckon it must have been substantially as high as the dam of 
the present day, because that, as the experiments show, does 
not affect the meadows in Sudbury and Wayland at all. 

There is another matter, gentlemen, to which I wish to al- 
lude. They tell you that the grant made to Osgood, in 1711, 
was made upon condition, that he should secure tlie town of 
Billerica from any charge that should arise from damage to 
lands in the towns above. Don't you see, gentlemen, that the 
dam must have been substantially as high as the present dam 
to have raised the water on the lands of the towns above ? 

Again, they say the town of Billerica undertook to indemnify 
one Toothacre for damage caused to his land by Osgood's dam. 
You will find a grant from the town to Toothacre to compen- 
sate him for the flowing of his meadow. You know, gentle- 
men, — those of you who are familiar with that locality — that 
from the Fordway down to the dam there is a rocky bottom, 
filled with stones ; there are no meadows until you get above 
the Fordway. Toothacre's meadow, therefore, must have been 
above the Fordway, Toothacre's meadow, they said, was 



54 

flooded in 1711 ; and in order to flood the lands above the 
Fordway at all, you must have a dam substantially as high as 
that of the present day. Do you not see that this dam must 
have been substantially as high before 1798 as it is now ? 

THE QUESTION OP LEGAL EIGHT. 

I am only referring to this as bearing upon another question, 
which has been alluded to by my friends on the other side. 
They say we have no right by our deed to hold the present 
height of the dam, and so the Commonwealth would not have 
to pay damages for taking away what we have no right to ; they 
tell you, that we didn't buy the present height of the dam, we 
only bought the Richardson privilege ; that the conveyance in 
that deed is of the Richardson privilege, reserving, at the same 
time, the right to Faulkner to draw down the water three- 
quarters of an inch below the top of the present dam. That 
is to say, it was the conveyance of a dam which was not within 
three feet and a half of the height of the present dam, with a 
reservation to Faulkner of a right to draw down the water half 
an inch below the top of the present dam ! Our friends say 
that deed did not convey to us the right to keep the dam at its 
present height. You will find, if you look at the deed, that it 
conveys to us as all the right the canal proprietors ever had to 
this property, with all the rights, privileges, and easements 
belonging thereto, saving and excepting the right of Faulkner 
to draw down the water until it gets three-quarters of an inch 
below the bolt, which they say is " the lawful height of the 
dam." I have only to remark on this objection of our friends 
on the other side, that you need not trouble yourselves at all 
about the matter. If they are right, tliey have the most full 
and perfect remedy in the world in any court, under our 
general laws, made for them and for us. I should be glad 
to meet my friends there at any time and have them ventilate 
the proposition they have insinuated here, for the purpose of 
inducing the legislature to sustain them in the positions they 
have assumed. You find, however, the counsel, who have their 
professional reputation at stake, don't press this objection at 
much length, or with much confidence — it is insinuated for 
the purpose of using it when and where there is no one to 
meet and answer it. 



55 



THE BENEFITS PROM THE ACT CONJECTURAL ONLY. 

I wanted to say more upon this matter, gentlemen, because 
I thought it of some importance, but I see that I cannot, and 
must hasten to a close, merely alluding to what 1 wish to call 
your attention to. Some evidence has been offered here for 
the purpose of showing that if you cut down the dam, it will be 
of immense benefit to the meadow-owners above, not because it 
will relieve them from any damage we have done — because we 
have done them none — but because it will permit them to 
improve the natural condition of their meadows. To establish 
this, they have presented some estimates of what it would 
cost. Gentlemen, is the legislature to be called upon, at this 
time above all otliers, (for I think we shall feel and appreciate 
what taxes are within a year more than, fortunately, we have 
ever before,) is the legislature to be called upon to let a measure 
stand which will involve an expense to the Commonwealth, the 
amount of which no man can tell at present, but large, 
undoubtedly, because possibly the owners of these lauds may 
sometime undertake to improve them ? Every-body knows 
that cutting down that dam and reducing the water eight 
inches at the Ford way would not, of itself, benefit the land. 
Nobody would ask you to do it for that alone ; but you are 
asked to do it because a thousand owners, more or less, of 
meadows, scattered along the river, may be able to do some- 
thing else that will render the land more valuable. How do 
you know they will do it? You know that, in 1789, they 
asked for a commission to go down to the Fordway and clear 
out the river, the commission having power to collect the 
money of the proprietors to pay the expense. The governor 
and council took them at their word, appointed the commission, 
and then they had a three years' quarrel, the owners refusing 
to pay a cent for the work that had been done as low down as 
the Fordway. You are asked to do this act, not because it will 
do any body any benefit, but because it will enable these 
meadow-owners to do something to improve their lands. Do 
you know that all these meadow-owners — some owning an acre 
and some less — will come together and agree to make these 
improvements ? 



56 



COST OF THE PROPOSED ALTERATION TO THE LAND-OWNERS. 

Let US see if we know what tins will cost. According to the 
average of the estimates, it would cost something over twenty 
thousand dollars to get any benefit from the proposed alteration. 
How do you get at it ? We all know — many of us to our cost — 
that in an undertaking like this, you cannot get any certain 
knowledge in reference to the expense. You may send your 
best engineers, and let them make their estimates in the most 
thorough and careful manner, and the probability is that those 
estimates will be doubled before the work is completed. This 
truth is written in the ruined fortunes of thousands and 
thousands who have invested their money upon the faith of 
estimates so made. Is it not the rule, in reference to new 
undertakings, where you cannot get sure and certain data to 
pass upon, that the estimates of the best engineers turn out to 
be largely exceeded when the work is done ? What do you 
have here ? In the first place, the estimates of half a dozen 
gentlemen who never have seen the place, who do not know any 
thing about it, who say they would not undertake the job at all 
without giving the whole matter a much more thorough exami- 
nation. These estimates were based upon what ? Based upon 
the information given by Mr. Shedd, one of the Commissioners. 
He tells you that he made no examination for the purpose of 
seeing what it would cost ; that he does not know the nature 
and character of the formations where excavations are to be 
made ; that he has not been there for the purpose of ascertaining 
how much the improvements would cost ; and that all he bases 
himself upon is the information that was given him by others 
who are not under oath and who are not before you. When I 
asked him, " Sir, as an engineer, would you be willing to do 
that job without further and careful examination ? " He said, 
frankly, " I would not." " Would you undertake to let it to 
others?" "I would not." Why, gentlemen, you not only 
have no estimates of engineers who have been on the ground 
and examined this matter, and satisfied themselves, but you 
have no estimates based upon any information that any human 
being says is safe to be relied upon. There is no obligation, on 
the part of any body, to improve these lands. No promise even 
that they will do it. You do not know that any body will do 



57 

it. You cannot say that any body has falsified himself if, after 
you have cut down the dam, no advantage is taken of it. They 
have not pledged themselves to do it, and you do not know — 
no human being knows — what it will cost. 

COST TO THE COMMONWEALTH. 

Then, sir, look on the other side for a moment. How much 
would it cost the Commonwealth ? There you are entirely in the 
dark. You have some estimates from this young gentleman, 
Mr. Mills, in reference to the amount of the water-power. We 
have a head and fall of eleven feet, and for manufacturing pur- 
poses, he says, if you cut it down a quarter part, there will be 
sixty-one per cent. left. You, sir, w^ould not pay in that ratio for 
it, for manufacturing purposes, — no man would. But I do not 
care to go into that. You have then some estimates in refer- 
ence to the use of steam-power. Mark this, sir ! If yoii are to 
supply the deficiency caused by the reduction of the dam by 
steam, you have to meet the expenses incident to the use both 
of water and steam-power. Here we iuive six wheels of Mr. 
Talbot, in different places, and he must have an engine in each 
place. Mr. Mills says that every wheel is to be altered, that 
the canals, running through rocky bottoms, are all to be lowered, 
and the basements of the mills also are all to be altered. Has 
any body told you how much all this is to cost ? You do this- 
thing, and Mr. Talbot will consider himself well off- if he gets' 
the alterations made, so as to use his water-power, for fifteen or 
twenty thousand dollars. How long will it take to do it ? This 
is not a job that could be done in less than three months. For 
twenty days, when only half of Mr. Talbot's mills were running, 
for twenty days, your Commissioners have said, Mr. Talbot, 
Mr. Faulkner, and the Belvidere Company, are entitled to five 
and forty hundred dollars as damages. Mr. Talbot says, in his 
testimony, page 293, that when he is in full work he uses, in 
the business of grinding dye woods, from 120 to 130 horse- 
power ; and he knows, no one better — I do not care what the 
estimate is on the other side. He uses 50 horse-power in the 
woollen factory, — making from 170 to 180 horse-power. Then 
there is Faulkner's mill, with some 50 horse-power more. Mr. 
Talbot has, in addition to this, an immense surplus power, 
8 



58 

■which can be used nine months in the year ; and in addition to 
this, he has the ohl grist-mill, in which he is obliged to grind 
for the town of Billerica. My friends on the other side have 
brought in some testimony in reference to the cost of steam- 
engines, and I am content to take that, (though it is worth 
nothing,) as far as it goes. They say that a steam-engine will 
last twenty years. I think that is rather longer than they will 
average, but take it at twenty years. A steam-engine of seventy- 
five horse-power, not by the way large enough to make up our 
loss, costs 17,500. It will cost $10.50 a day for fuel, and |3 a 
day for extra help, besides 1750 per year for repairs. Why, sir, 
to obtain a sum sufficient to reproduce a seventy-five horse- 
power engine every twenty years, and keep it in operation, it 
must be from $100,000 to 1150,000 at least. And this is with- 
out any thing for increased risk or the buildings necessary for the 
engines. Why, gentlemen, talk about expense here ! Cut down 
this dam, and let us go to a jury from the nfighbiring towns, 
and let us bring in an exact estimate of what it will cost, and, 1 
was going to say, I would almost give up the trying of cases, if I 
could not convince any jury that ever sat in Middlesex County 
that 1200,000 would not cover the damages to these several 
parties that will be done by this operation. Why, they show 
themselves that it must be from one hundred to one hundred 
and fifty thousand dollars, beyond all controversy. And you 
are asked to do it upon what evidence ? Not upon any evidence 
that any body will be benefited by it ; but because, when this 
is done, and you have incurred this enormous expense, it may 
be, possibly it may be, that a great number of meadow-owners 
will join together and tax themselves to the extent of twenty 
thousand dollars, at least, and it may be double — you cannot 
tell — and so improve and benefit the land above the dam. If 
they do this, they will find, when they have drained the water 
out of the land, that the water will not be the only thing that 
will fall. If these lands have been kept for the growing of 
" pipes," with water upon the surface, for the last two hundred 
years, from 1^ to 3| inches deep, let them draw it down two 
feet below the surface, and they will find that the land will sink 
a little as well as the water. I know enough to know that, 
without professing to be much of an agriculturist, for I have 



59 

seen lands that have been covered in this same way, when 
the water was drained off the surface, settle down, to a certain 
extent, following the fall of tlie water. 

THE TESTIMONY UNCERTAIN AND UNSAFE. 

Well, gentlemen, you are asked to do all this upon uncertain 
testimony, not proper, not fair, not right to be acted upon, 
upon which you would not act in any matter in which you were 
concerned. The witnesses themselves say they would not act 
upon it. Upon such unsafe, unsatisfactory, and dangerous 
grounds you are asked to take our property from us, to inter- 
fere with the prosperity of the town of Billerica, that town 
appearing here in opposition to the measure, — you are asked to 
do it, not because, under the law passed in 1793, an injury has 
been done, and in payment for that injury, but you are asked 
to do it in order to enable somebody, whom you do not know, to 
improve upon the natural condition of these meadows. You are 
asked to assume an expense, — you do not know how large, only 
you know it will be very large ; you are asked to inaugurate a 
new policy ; you are asked to say that the Commonwealth shall 
come in and assume the responsibility and expense of draining 
the lands of the Commonwealth at this time ; you are asked to 
commence this new policy, which will be the beginning of an 
end which will not be in your generation or in mine. The 
next you will hear will be from the Charles River and the 
Neponset River, and a thousand and one other streams ; and 
when you have set this example, and thus told the people of the 
Commonwealth that you will spend one or two hundred thousand 
dollars to enable the meadow-owners on the Sudbury and 
Concord rivers to improve their lands, how can you reply to 
the people on Charles River, or on any other river in the 
Commonwealth, that you will not do tlte same thing for 
them ? Are you prepared, gentlemen, upon this evidence, are 
you prepared upon any thing that appears in this report, to 
say to the people of the Commonwealth : "We will from this 
time commence a new policy ; we will now, in order to enable 
certain meadow-owners to improve and render more valuable 
their meadows, — not because, as they say, we have injured them 
without paying them for it, — we will take one or two hundred 



60 

thousand dollars from the treasury of the Commonwealth at 
least, and if the policy is established, take sums untold from the 
same treasury, already biirdened enough " ? 

CONCLUSION. 

There are many other matters, gentlemen, which I desired to 
open before you and enlarge upon, but I have already taken 
more time than I ought to have done. I have already wearied 
myself, certainly, if I have not exhausted your patience. I 
have only to say that I thank you heartily and sincerely for the 
kindness and patience with which you have listened to me, and 
must now trust the whole matter in behalf of my clients to 
your wisdom, to your sound practical common sense. 



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